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Exhibit 1
BIG BUS TOURS/GRAY ONE MIAMI CONCESSION LICENSE AGREEMENT This Concession License Agreement (the "Agreement"), made this day of , 2011, by and between the Bayfront Park Management Trust (the "Trust"), a limited agency and instrumentality of the City of Miami, a municipal corporation of the State of Florida, (the "City"), and Conway Tours, Inc. d/b/a Big Bus Tours/Gray Line, a Florida limited liability company (the "Concessionaire"). RECITALS: Whereas, the City Manager is authorized to enter into agreements to grant concession privileges to concessionaires for concession services in the City's parks; and Whereas, pursuant to Chapter 38, Article HI of the City of Miami Code, the Trust has been empowered to direct, operate, manage and maintain all aspects of Bayfront Park ("Park"); and Whereas, the Trust's purpose is to ensure maximum community utilization of the Park; and Whereas, pursuant to Chapter 38, Article III, the Trust's Executive Director is authorized to manage and operate the Park; and Whereas, the Trust recognizes that in order to attract more persons to the Park and maximize community utilization, it must enter into agreements with companies to provide services to the public for their increased enjoyment of the Park; and Whereas, the Trust, in its efforts to maximize community utilization and enjoyment of the Park, has entered into previous concession agreements for services to be provided to the public in the Park; and Whereas, the Trust desires to have tour bus and transportation services ("the Concession") service the Park, which in -turn will attract more City, residents and tourists to the Park while improving their access to and enjoyment of the park; and Whereas, the Trust issued a Request for Proposals -- No. 263248 -- (the "RFP") =for Concessions/Food/Merchandise Plan and Operations for Bayfront Park, requesting proposals from companies to establish a contract, for Concessions/Food/Merchandise Plan(s) and Operation(s) for City of Miami's Bayfront Park who will provide a guaranteed income to the Trust as a result of the Concession; and Kph -1=4- 0-162 l g Whereas, the Concessionaire's proposal (the "Proposal") has been selected as among the top -ranked proposals to provide the Concessions/Food/Merchandise Plan and Operations. for:8ayfront.Park, ..and was selected as among the most qualified firm with whom to negotiate a contract; and Whereas, the Trust, at its June 21, 2011, board meeting, accepted the recommendation of the Evaluation committee to authorize the Executive Director to enter into negotiations with the three respondents to the RFP for an agreement; and Whereas, the Concessionaire is willing and able to manage and operate such Concession in the Park based upon the terms and conditions contained herein; and Whereas, the Trust, by Resolution No. XXXX, adopted on XXXX XX, 2011, authorized the Executive Director to execute a concession license agreement, under the terms and conditions set forth herein; and Whereas, the City Commission, by Resolution No. XXXXX, adopted on XXXX XX, 2011, authorized the Executive Director to enter into a concession license agreement, under the terms and conditions set forth herein; NOW, THEREFORE, in consideration of the mutual covenants and agreements hereafter set forth, the receipt and sufficiency of which are hereby acknowledged to be kept and performed by the parties, it is agreed between the Trust and the V VIII..GJJIVIIQ IIG CIO IVIIVYYJ. ARTICLE I DEFINITIONS For the purpose of this Agreement, the terms defined in this Article shall have the meanings set forth below. "Additional Fees" shall mean all other charges and payments payable by the Concessionaire to the Trust in addition to the Concession Fee, percentage of tickets sold at concession venue , Returned Check Fee and, but shall not include the Security. "Additional Term" shall have the .meaning set forth in Section 2.3 hereof. "Agreement" shall have the meaning set forth in the preamble. "Area" shall mean all portions of the Park, including but not lirnited to, the :Concession-Area;-thatare .used by the Concessionaire for its operations pursuant to this Agreement. "Army- Corps" shall mean the United States of America, U.S. Army Corps of Engineers. "City" shall have the meaning set forth in the preamble. "City Commission". shall meant the City. of Miami Commission. "Commencement Date" means the date that the Concession shall be open for business and is further defined in Article III entitled "Term." "Complimentary Tickets" shall mean those tickets not transferring or exchanging the absolute or general ownership of property from one person or corporate body to another for a price, as a sum of money or any other consideration and does not involve a transfer of title or possession, or both, exchange, barter, license, lease or rental, conditional or otherwise, in any manner or by any means whatsoever, of tangible personal property for a consideration. "Concession" shall mean the provision of tour bus and transportation services as outlined in attached plan. "Concession Area" shall mean the area within the Park that is designated for the operation of the Concession on Attachment B, attached hereto and made a part of the Agreement. "Concession Agreement Year" shall mean a consecutive twelve (12) month period during the Term and each Additional Term, if exercised, commencing on the Commencement Date. "Concession Fee" shall mean the all payments made to the Trust for the right to operate the concession in the Park and is further determined in section 4.1(a) hereof. "Concession Manager" shall mean the Concessionaire's manager or assistant manager on duty. "Concessionaire" shall have the meaning set forth in the preamble. "Concessionaire Administrator" shall mean the person(s) authorized by the Concessionaire to act fully on behalf of the Concessionaire in managing the Concession as required by this Agreement. "Deposit" shall have the meaning set forth in Section 7.1 hereof. "Event Days" shall mean the days or nights in which there are events and activities that occur in the Park. "Executive Director" shall be the Trust's Executive Director who is authorized to administer the Agreement and coordinate the activities of the Concessionaire at the Park. 3 "Gross Revenues" shall mean the aggregate amount of all revenues including taxes, prior to payment of commissions, derived from all ticket sales collected at venue, arising or accruing .byvirtue of managing ,and operating the Concession, whether such revenues shall be credit or cash or otherwise, and shall include any finance charges or similar payments'received by -the Concessionaire as a result of the Concession. "Hazardous Materials" shall have the meaning set forth Section 10.1 hereof. "Hazardous Materials Laws" shall have the meaning set forth in Section 10.1 hereof. "Hazardous Conditions" shall mean the conditions that occurred as a result of noncompliance with the Hazardous Materials Laws. "Improvements" shall mean any building, structure, construction, demolition, excavation, landscaping, or any part thereof existing, built, erected, placed, made, or done within the Park for its permanent benefit. "Indemnitees" shall mean the City, the Trust and the Army Corps, and their officials, employees, agents and volunteers, collectively. "Liabilities" shall have the meaning set forth in Sections 12 and 13 hereof. "Modifications" shall mean nonpermanent, removable alterations, major repairs, modifications, additions, partitions or changes, including trade fixtures placed in the Park by Concessionaire for the Concession pursuant to this Agreement. "Operating Hours" shall mean the hours in which the Concession shall be open and available for operations as further defined in the Management and Operations Plan. 'Operations Plan" shall mean the Management and Operations Plan for the Concession, which is attached hereto as Attachment C and which is made a part of this Agreement, as amended from time to time with the prior written approval of the Executive Director. "Park" shall have the meaning set forth in the preamble. "Proposal" shall have the meaning set forth in the preamble. ".Returned.C:heck_Fee" shall have the meaning set forth in Section 4.6 hereof. "RFP" shall have the meaning set forthin thepreamble: "Sale," "Sell" or "Sold" shall mean the act of transferring the absolute or general ownership of property from one person or corporate body to another for a price, as a sum of money or any other consideration, as distinguishable from a gift, and includes any transfer of title or possession, or both, exchange, barter, license, lease or rental, -,conditional or othen/vise, .in .any manner or by any means whatsoever, of tangible personal property for a consideration. "Security" shall mean the financial security for the payment and performance by the Concessionaire of all of the Concessionaire's obligations, covenants and conditions pursuant to this Agreement. "Solicitation Documents" shall mean the RFP and the Proposal, which are by this reference incorporated into and made a part of this Agreement, as Attachment A. "Sponsor" shall be any person or corporate entity which purchases name placement; logo. placement, advertising, and other forms of sponsorship, from Concessionaire, or its agents or subcontractors, as a result of or in connection with the Concession: "Subcontractor" or "Agent" shall mean any individual, partnership or corporation who is contractually bound to the Concessionaire to perform a specific portion of the total work package under this Agreement. "Tax" shall mean any and all taxes, fees, costs, assessments or fines assessed by a municipal, county, state or federal agency that is assessed against the Concession, its operations, personal property of any kind, owned by or placed in, upon or about the Concession Area by the Concessionaire, or arising as a result of the Trust entering into this Agreement, whether assessed against the Concessionaire, the City or the Trust. "Term" shall have the meaning set forth in Section 2.1 hereof. "Termination Date" shall mean the day on which this Agreement expires or such earlier date as may be specified in accordance with the provisions of this Agreement. "Trust" shall have the meaning set forth in the preamble. "Trust Fee" shall mean the aggregate of the Concession Fee that the Concessionaire shall pay to the Trust, as applicable. "Trust's Tickets" shall mean the number of Complimentary Tickets that the Concessionaire shall give to the Trust annually. "Unavoidable Delay" means damage or destruction by fire or other casualty, :_,,;whetheNsimilaror. dissimilar, -acts: of federal, state, countyand/dr. city' -dbverrtmer is -including acts 'pertaining -to strikes, embargoes, shortages of material or labor, labor .__.troubles -or labor disputes, force majeure, unusually adverse weather conditions, or other like or unlike events or conditions beyond the control of the parties hereto, 5 including any court actions, and injunctions by third parties, which results in impossibility of performance. ARTICLE 1I TERM 2.1 TERM. The term of this Agreement shall be for a period of five (5) years from the Commencement Date (the "Term"), unless earlier terminated or extended as provided herein. 2.2 COMMENCEMENT DATE. Within one hundred eighty (180) days after the City Commission and Trust approval of the terms and conditions of the Agreement, Concessionaire shall obtain all of the licenses and permits necessary for the operation of the Concession. Concessionaire shall send written notice to the Executive Director of the date that the Concession shall open for business. The Executive Director shall be able to extend the one hundred eighty (180) day period for an additional one -hundred twenty (120) days with Trust approval. 2.3 OPTION.. This Agreement may be extended for two (2) additional five-year periods upon the. same terms and conditions contained herein (each "Additional Term"). In order to exercise this extension, the Concessionaire must deliver written notice of its intent to the Trust six (6) months in advance of expiration of the Term or Additional Term, but no earlier than nine (9) months prior to the expiration of the Term or Additional Term. Upon- receipt of such notice, the Trust may .conduct an audit of the Concessionaire's compliance with the provisions of this Agreement. If the Trust determines that the Ci C11.H.,, iut a r e is it ( co [i.JilCai fS..G wiL i dii u! LI !G Ni vv i.?Ivt r�� Jr rrJ Agreement, then the Agreement may be extended 'for an Additional Term. Should a compliance audit reveat a default in performance, such as underpayment of any amounts due from ? I Li iG Gill{ l:.; IL1! Sd{{G. -ouch iiefauiL s idii hot be as basis to deny an n extension of. this' Agreement, provided that any such default is cured within thirty (30) days of notice from the. Trust. Regardless of the provisions above, habitual non- compliance with this Agreement by the Concessionaire shall be grounds for denial of an Additional Term by the Trust. ARTICLE III. CONCESSION 3.1 DESCRIPTION OF CONCESSION. The Concessionaire shall provide the services further described herein, subject to the exceptions and conditions hereinafter set forth, for purposes of providing the Concession in the Park within the terms and conditions of the Management and Operations Plan, attached hereto as Attachment C and is incorporated and made a part of this Agreement..;. _ -The Trust and the City reserve the right to enter the Coi-,cessorr, cAl portion of the. Park. Any such entry shall be performed in a reasonable manner and to minimize any disruption to the Concessionaire's operation. The Concessionaire shall not use the Concession Area or any other portion of the Park for any purpose other -than herein specifically designated without prior written consent of the Trust. 3.2 NATURE OF CONCESSION. This Agreement solely authorizes the Concessionaire to provide services as set forth herein for the purposes set forth herein and for no other purpose. The parties hereby agree that the provisions of this Agreement do not constitute a lease. The rights of the Concessionaire hereunder are not those of a tenant, but are a privilege to do certain acts of a limited character within the Park and to use the Park subject to the terms of this Agreement. The City, the Trust and the Army Corps retain dominion, possession and control of the Park. Therefore, no lease interest, or any other interest in property in the Park, is conferred upon the Concessionaire under the provisions hereof: The Concessionaire does not and shall ..1 ..I..im ..♦ any 1'rne any interest Or estate ..r any I.ind CI extent .l•... a.. the Park, -oever in by virtue of this Agreement or its use of Concession Area, or any other portion of the Park, hereunder. Additionally, the Concessionaire does not and shall not claim at any time any interest or estate of any kind or extent whatsoever in the Concession Area by virtue of any expenditure of funds by the Concessionaire for any Modifications, which may be authorized by the City or the Trust. The Concessionaire may place Modifications atio thepark for the .r e r prat - - -r tp_ _ Cnncessi.-.n �-!O,�ii�u•.�. �S in ��; ,i:c�;�._JF_.ni_,it riiil �;.;,_._._._.. L. - - -- ----- - - ith prior Trust approval. Such modifications may include, but are not limited to, a removable non -permanent structure(s) for ticket sales and information. The parties agree that Concessionaire's equipment that may be placed or installed in the Concession Area are not Improvements, but are equipment which shall be removed in accordance with the restoration of the Park provisions contained in Section 19.4 hereof. r�essionairn and its ernpb rees -hail corn -le -tit all Trust rules The vv� iv un u �.� �vevr �. v�.� -tail vv� vr��o w� i ��.+..> and tegulations governing.access to and conduct in the Park. �.: CONCESSION AREA. The Concessionaire hereby accepts the Concession Area 'as is" and "where is," and any other portion of the Park that may be utilized pursuant to this Agreement, except that Section 8.1 shall apply hereto. The Concessionaire f' ..s.'-E'v'i ..,,E(v r,.e.c ni... .v...sc... any ... the City'.'. (Dr the ...,e.e .m _-. e;....,. i_s fixtures or personal property from the Park without the prior written consent of the Executive Director. The Concessionaire shall, at its sole cost and expense, be responsible for the operation, cleaning, preventative maintenance and reasonable care and repair of all the Improvements, fixturesand personal property that_ituses for the Concession. .The r_niarp nr rAnRir its RniP rnRf -:provided by the Trust -or the City, that are lost, damaged or destroyed due to the acts, ;omissions or_ negligence of the Concessionaire or its Agents or employees, -3.4 CONCESSION AREA DESIGN. The Concessionaire recognizes the importance of a consistent; design to all elements in the Park, and therefore agrees to ensure that 7 the design elements at the Concession are consistent with the other components of the Park, subject to written approval by the Trust's executive director or designee. 3.5 INSTALLATION OF MODIFICATIONS: The Concessionaire shall furnish and install, at its own expense, the equipment and personal property necessary to manage and operate the Concession. Within sixty (60) days of execution of this Agreement, the Concessionaire shall provide the Executive Director with its plans for the Modifications for the Concession. Within ninety (90) days of execution of this Agreement, the Concessionaire shall have a plan for the Modifications, approved by the Executive Director. During this ninety -day period, the Executive Director shall have seven (7) calendar days to approve modifications or request modifications to Concessionaire's plans for the Modifications. If the Executive Director requests modifications, the Concessionaire has thirty (30) days thereafter to submit revised plans. Within one hundred twenty (120) days after the Executive Director sends notice of the approval of the Modifications, the Concessionaire shall begin and continuously pursue to install Modifications in the Concession Area. The Executive Directorshall grant further extensions for good reason, which shall not exceed an aggregate of one hundred eighty (180) additional days from the Concessionaire's initial submission of its plans to the Executive Director. 3.6 CONCESSIONAIRE RESPONSIBILITIES. The Concessionaire covenants and agrees that the Concessionaire shall, at its sole cost and expense, operate, manage and maintain the Concession and provide the Concession required under this Agreement and specifically agrees as follows: A. The Concessionaire shall, at its sole cost and expense purchase, lease or finance all equipment and supplies and materials necessary for the operation of the Concession. B. The Concessionaire shall, at its sole cost and expense, provide telephone service for its own use, and/or any other utility needed. • C. The Concessionaire shall be responsible for security of the Concession Area. The Concessionaire shall insure that all appropriate equipment has been turned off and appropriate doors locked at the close of operation within the Concession Area each day. The lights in the Concession Area may remain lit to provide illumination for the Concessionaire's signs and for security purposes but the Concessionaire shall turn off all other lights that are not needed after hours for these purposes. D. The Concessionaire shall provide the Executive Director with the contact names .and contact numbers of the Concessionaire Administrator that will be available -at anytime to-.call-inrthe case=of. emergencies. These individuals °must be available by phone twenty-four (24) hours a day, seven (7) days a:week. initially the Concessionaire- :Adfninistrators,will-be Julia=M. Conway, CEO and Jon Bono, Operations Manager. E. The Concessionaire shall train all employees to respond to emergencies. F. The Concessionaire shall include the organization chart listing the employee titles in its Operations Plan. G. The Concessionaire shall assume all costs of the Concession including, but not limited to, security, staffing and maintenance of the Concession Area. H. The Concessionaire shall be responsible for the provision, installation, repair and preventive maintenance of all equipment necessary to operate the Concession and keep the Concession Area in good repair. The Concessionaire shall be responsible for making Modifications required for the safe operations of the Concession. .3.7 OPERATION OF CONCESSION. Starting on the Commencement Date, the Concessionaire shall begin operating the Concession, within the Concession Area, in accordance with the Operations Plan. The Concessionaire shall operate the Concession seven days a week subject to the terms and conditions of this agreement. Nothing contained herein shall cause the operation of the service in unsafe weather conditions. Further, the Executive Director may request temporary amendment to the Concession's hours of operation for Event Days, during a state of emergency, or for other governmental purposes, and the Concessionaire agrees to accommodate such requests. In the event that access to the Concession Area is restricted by the Trust or City for non -emergency governmental purposes, and which requires closure of the Concession, the Concessionaire shall be entitled to a pro -rated abatement of any Concession fee which may be due to the Trust pursuant to the terms of this Agreement. For purposes of this Agreement, "closure" shall be defined as a period of four consecutive hours or more during one 24 hour period, and shall result in an abatement of one day payment of the Concession Fee. A. Event Days: The Concessionaire recognizes that events are regularly scheduled in the Park and may be required to close for the duration of the event. B. State of Emergency/Hurricanes: The Concessionaire recognizes that emergencies, both weather related and non -weather related may arise, which would limit access'to the Concession Area. °QUALITY, AND PRICE CONTROL. The. Concessionaire shall operate, ,the,: :- Concession -in- the Parkin a first class manner. The -Concessionaire shall send the -: ::Trust's :Executive. Director -its list of prices. The Concessionaire's retail prices shall be plainly displayed in the Concession Area. 3.9 SANITATION The Concessionaire shall, at its sole cost and expense, maintain and keep fixtures, equipment, personal property, whether owned by the Concessionaire or third parties, the -Concession. Area and any other Area(s) that may be designated by the Trust for Concessionaire's use, in a clean and sanitary condition satisfactory to the Trust. The Concessionaire shall 'manage and operate •the Concession in strict compliance with all applicable federal, state and local laws and regulations governing this -type of operation. In the event of an inspection the Concessionaire shall obtain and maintain a satisfactory rating on all government inspections. The Concessionaire shall provide copies of each inspection report to the Executive Director within two (2) business days of receipt of the same by the Concessionaire. The Concessionaire shall make separate arrangements, at its sole expense, for the disposal of the trash and garbage from the Concession. The Concessionaire shall, at its sole cost and expense, provide a sufficient number of trash and garbage receptacles within the Concession Area and other Areas designated for its use and for use by invitees. The Concessionaire shall, at its sole cost and expense, be responsible for the disposal of such receptacles and the removal of trash and garbage from the Concession Area utilizing acceptable environmental techniques and canisters. The Concessionaire's employees handling Hazardous Waste must be trained in the handling of Hazardous Waste. Concessionaire shall not dispose of any Hazardous Waste in the Park. 3.12 UTILITIES. The Concessionaire shall be solely responsible for the cost and expense, to furnish air conditioning, heat, hot and cold water, lights, electric current, sewage, gas, and utilities and shall have installed metering devises which measures the Concession's usage of utilities. The Concessionaire must abide by the rules, regulations, schedules and practices that may be set forth by the Trust, in its reasonable discretion. When necessary to protect the health, safety and welfare of the Park and the public, including, but not limited to, reason of accident, emergency or for any other cause beyond the reasonable control of the Trust, the Trust reserves the right to interrupt, curtail or suspend the provision of any utility service, including but not limited to, heating, ventilating and air conditioning systems and equipment serving the Concession Area, to which the Concessionaire may be entitled hereunder. The Trust shall in no respect be liable for any failure of the utility companies or governmental authorities to supply utility service to the Concessionaire nor for any limitation of supply resulting from governmental orders or directives. No diminution or abatement of the Concession Fee or other charges, nor damages, shall be claimed by the _'Concessionaire by - reason of the Trust, or other person or entity's interruption, curtailment or --suspension of a utility service, nor shall this Agreement or any; of the Concessionaire's : obligations hereunder be affected or reduced' thereby Provided; however, that should there be a disruption of utility services which is out of the Concessionaires -control and results in closure of the Concession for- more than forty- ; eight-.(48) hours,.thenssuch-occurrence shall be treated as an Unavoidable Delay. In the 10 event that the Trust interrupts, curtails or suspends the provision of any utility service serving the Concession Area, the Trust will take reasonable efforts to restore such service within a :reasonable :time and ,manner. The Concessionaire shall make all reasonable efforts to mitigate its damages. 3.13 PARKING. The Trust will not provide parking spaces for the Concessionaire within the Park. 3.14 TRUST ACCESS TO FACILITY. The Trust, the City and the Army Corps, and their authorized representative(s), shall have access at all times to the Concession Area or any other Area in the Park that may be used by the Concessionaire. The Concessionaire shall immediately provide keys to the Trust for any new equipment or key changes. Changes to the locks must be reported to the Executive Director. The Concessionaire shall immediately provide any new keys to the Executive Director. Trust access may include, but is not limited to, entering into the Concession Area for repairs, alterations or Improvements which, in the judgment of Trust, may be desirable or necessary to be made to the Park. The work of such repairs, alterations or Improvements shall be completed by the Trust or its agents with reasonable diligence. The Trust shall make its best efforts not to interfere with the operation of the Concession. 3.15 PERMITS AND LICENSES. The Concessionaire, at its sole cost, shall obtain any and all permits and licenses required for the Concession's operations. The Concessionaire represents and warrants to the Trust as of the Commencement Date that: (i) it possesses all qualifications, licenses and expertise required under the Agreement for the performance of, management of and operation of the Concession; (ii) it is not delinquent in the payment of any sums due to the City, including payment of permit fees,.occupationai licenses, etc., nor in the performance of any obligations to the City; (iii) all personnel assigned to perform the Concession are and shall be, at all times during the term hereof, fully qualified and trained to perform the tasks assigned to each; and (iv) the Concession will be performed in the manner described in the Operations Plan. 3.16 PERFORMANCE REVIEW MEETINGS. The Concessionaire Administrator and the Executive Director, or designee, will schedule meetings every ninety (90) days after the Commencement Date, to review all aspects of the Concessionaire's performance under this Agreement. The Concessionaire shall present to the Executive Director operational issues, existing programs, ideas for new programs, any operational improvements, the visitor count and ideas for coordinating the Events. 3:17 :.:PROMOTIONAL MATERIAL. All of the Concessionaire's marketing materiar shall include _ either "Bayfront Park" or "Bayfront Park Management Trust" and its. address, 301 N: Biscayne Blvd. Miami, Florida .33132, in ,a ..manner, that .can reasonably seen on the material. 11 ARTICLE IV CONSIDERATION AND PAYMENTS 4.1 TRUST FEE. The Concessionaire agrees to pay the Trust an aggregate Trust Fee, in the manner and upon the conditions hereinafter provided: (a) a Concession Fee during each Concession Agreement Year, including any extension hereof, in an amount equal to $36,000 annually (the "Concession Fee"), which shall be paid in equal monthly payments of $3,000. In subsequent years, the Concession Fee shall increase in accordance with increases with the Consumer Price Index (CPI) or by 3%, whichever amount is greater. The CPI shall be determined by the last 12 month unadjusted percentage change in the Consumer Price Index calculated by the Bureau of -Labor Statistics of the U.S. Department of Labor for the South Florida region. Concession Fee is subject to State of Florida Sales Tax, currently at 7%. (b) 5% of Ticket revenue originating in Park (c) Returned Check Fee; and (d) all Additional Fees 4.2 PAYMENTS OF THE TRUST FEE. Payment of the Trust Fee shall be as follows: Trust Fee When Start When Payment Due Concession Fee Upon Commencement Date Unless provided herein, all Fees shall be paid within the first seven days following the end of the calendar month during which such payment accrued. 5% of Ticket revenue, as defined in Gross Revenue Commences ten (10) months after date of execution. Unless provided herein, all Fees shall be paid within the first seven days following the end of the calendar month during which such payment accrued. Additional Fees Date of execution Unless provided herein, all Additional Fees shall be paid within the first seven days following the end of the calendar month during which such payment accrued. cWithin seven<.(7) :business days after the end of each calendar month, the :Concessionaire shall deliver to the Trust a written report - of its ticket sales for the 'Concession -for the preceding calendar month. The report shall be signed by the cc Concessionaire Administrator -certifying the accuracy of such ticket sales, and shall also 12 be accompanied by statements signed and certified by the Concession's Administrator. Said statements must include daily sales by category. 4.3 INTEREST ON LATE PAYMENTS. Any payment made by the Concessionaire for any -fees 'or charges as required to be paid under the provisions of this Agreement, which is not received by the Trust within ten (10) business days,after same shall become due, shall be subject to interest at the prime interest rate which shall be imposed starting on the thirty-first day after such payment is due until such time as the payment is actually received by the Trust. 4.4 OVERPAYMENT AND UNDERPAYMENT. In the event that the Concessionaire can demonstrate, by generally accepted accounting principles, that it has made an overpayment in the Trust Fee, the Trust shall refund such overpayment to the Concessionaire. -If the Concessionaire has made. an underpayment in the Trust Fee, then said underpayment shall be paid to the Trust. Overpayments and underpayments shall be paid within thirty (30) days after the overpayment or underpayment, as the case may be, has been determined. 4.5 TRUST'S TICKETS. Within thirty (30) days of commencement of each Concession Agreement Year, the Concessionaire shall provide the Trust with one hundred (100) Complimentary Tickets to the Concession per year. 4.6 RETURNED CHECK FEE. In the event that any Trust Fee is returned as uncollectible, the Concessionaire shall pay to the Trust a returned check fee equal to that charged by the bank; currently in the amount of thirty five dollars ($35). The "Returned Check Fee" is due upon notice of the Trust's receipt of the unpaid item. 4.7 FORMS OF PAYMENT. Payments shall be made to the Bayfront Park Management Trust, 301 N. Biscayne Blvd., Miami, Florida 33132, on the date that payments are due. Payments shall be in the form of company checks, cashiers check, money order, or wire transfers. Payments shall not be tendered in the form of cash. ARTICLE V PERSONNEL 5.1 PERSONNEL. The Concessionaire shall, at its own expense, provide adequate staff for the provision of the Concession, trained in the management and operation of the Concession. The Concessionaire's staff shall provide courteous, efficient and sanitary service to the invitees. The Concessionaire agrees to furnish its personnel with identification required for entrance to or exit from the Concession Area during normal work hours. 5.2' CONCESSIONAIRE ADMINISTRATOR AND MANAGER(S). The Concessionaire Administrator shall be responsible for daily oversight of the Concession -- as specified in this Agreement. The Concessionaire may also have a Concessionaire 13 Manager(s) who shall be on -site during all hours that the Concession is open. The Concessionaire's Manager(s) must have experience in a similar operation with comparable responsibilities_ '5.3 PERSONNEL TRAINING. The Concessionaire shall have adequately trained personnel to maintain a high quality Concession. The Concessionaire shall ensure that critical positions (those that are necessary to open and operate the Concession Area) will have adequate back-up employees on -call to cover for absenteeism. The Concessionaire shall require employees to comply with all instructions, rules and regulations of the Trust regarding the Park operations. 5.4 LABOR RELATIONS. The Concessionaire shall be responsible for its own Tabor relations with any trade or union representative among its employees and shall negotiate and be -responsible for adjusting all of the disputes between itself and its employees or any union representing such employees. Whenever the Concessionaire has knowledge that any actual or potential labor dispute is delaying or threatens to delay the timely performance of the Concession, the Concessionaire shall immediately contact the Executive Director by phone and provide written notice of the dispute. ARTICLE VI NONDISCRIMINATION 6.1 NONDISCRIMINATION. The Concessionaire agrees that there will be no discrimination against any person based upon race, religion, color, sex, ancestry, age, national origin, or mental or physical handicap, while providing the Concession or within the Concession Area. An allegation of discrimination shall not be deemed a violation of this provision until there is a final determination by a court of competent jurisdiction that discrimination has occurred. If such determination is made by a court, and all appellate review has been exhausted, then the Concessionaire shall take reasonable actions to eliminate the conditions which were determined to be the causeof the discriminatory act(s). ARTICLE VII DEPOSIT :. _7.1 `_ :SECURITY. Security shall consist of a Security Deposit. 7.2 "DEPOSIT. t' The 'Concessionaire shall deposit with the Trust the sum of $9,000 _equal..to three (3) months concession Fee as a security deposit (the "Deposit"). At least one-half (1/2) of the Deposit, or an amount not less than $4,500, shall be paid within five 14 (5) days after the Agreement is approved by the City Commission, with the remaining balance payable no later than five (5) days prior to Concessionaire's placement of any equipment, Modifications, or any -personal property on the Park, necessary to manage and operate the Concession. The Deposit shall not be deemed liquidated damages but shall be used for damages to the Park and for restoration of the Concession Area in accordance with Section 19.4 hereof and non -monetary defaults not directly associated with the nonpayment of the Trust Fee. The Deposit shall be held in an interest bearing account in a financial institution as determined by the Trust. All interest accruing on the Deposit shall be for the benefit of the Concessionaire and made payable to Concessionaire on a yearly basis. In the event that there are damages to the Park as a result of the Concession, the Executive Director shall send written notice to the Concessionaire to repair such damages. Concessionaire shall commence and continuously prosecute the repair of such damages within thirty (30) days of the Executive Director's notice. If Concessionaire fails to commence such repairs within such time, the Executive Director shall apply the Deposit towards the payment of such repairs. Concessionaire shall be liable for the cost of such repairs and application of Deposit to reduce damages to the Park shall not preclude the Trust from recovering from Concessionaire all additional damages incurred by the Trust to the extent permitted under this Agreement. 7.3 REPLINISHMENT OF SECURITY. The Trust shall have the right to apply all or any portion of the Security to cure a default in accordance with Sections7.2 and 7.3. In the event that the Trust applies the Security, or a portion thereof to cure a default, the Concessionaire shall promptly, within five (5) business days, deposit with the repository of the funds for the Security, the amount necessary to restore the Security to its original amount. Failure to replenish the Security within five (5) business days shall result in termination of this Agreement by the Trust. Application of the Security to reduce the Trust's damages shall not preclude the Trust from recovering from the Concessionaire all additional damages incurred by the Trust. 7.4 RETURN OF SECURITY. If the Concessionaire fully and faithfully complies with all of the terms, provisions and conditions of the Agreement, the Security shall be returned to the Concessionaire after both: (i) the expiration of the Term, as may be extended pursuant to the provisions of this Agreement, and (ii) the Concessionaire's delivery to the Trust of the entire Concession Area in the same condition or better than existed on the Commencement Date, except for ordinary wear and tear and the restoration of the park as provided in Section 19.4 hereof. The Trust shall have fifteen (15) days from the time the Concessionaire vacates the Concession. Area to notify the. -Concessionaire, in writing, of any damages to the property. The Concessionaire shall have,thirty (30) ,days.fr_om receipt of notice to cure the damage. If Concessionaire does not cure the damage, -then the Trust shall be entitled_to apply funds -from the Security _towards _the:cost ofsuch repairs, and the balance of the security shall be returned to Concessionaire. 15 ARTICLE VIII HAZARDOUS MATERIALS 8.1 ENVIRONMENTAL. WARRANTY. The Concessionaire shall, at its sole cost and expense, at all times and in all respects comply with all federal, state and local laws, statutes, ordinances and regulations, rules, rulings, policies, orders and administrative actions and orders ("Hazardous Materials Laws"), including, without limitation, any Hazardous Materials Laws relating to industrial hygiene, environmental protection or the use, storage, disposal or transportation of any flammable explosives, toxic substances or other hazardous, contaminated or polluting materials, substances or wastes, including, without limitation, any hazardous substances, hazardous wastes, hazardous materials or toxic substances, under any such laws, ordinances or • regulations .(collectively "Hazardous Materials"). The Concessionaire shall, at its sole cost and expense, procure, maintain in effect and comply with all conditions of any and all permits, licenses and other governmental and regulatory approvals relating to the presence of Hazardous Materials within, on, under or about the Park required for the Concessionaire's use of any Hazardous Materials in or about the Park in conformity with all applicable Hazardous Materials Laws and prudent industry practices regarding management of such Hazardous Materials. The Trust recognizes and agrees that the Concessionaire may use materials in normal quantities that are applicable to the Concession for the. purposes stated herein and that such use by the Concessionaire shall not be deemed a violation of this Article, so long as the levels are not in violation of any Hazardous Materials Laws. The Trust acknowledges that it is not the intent of Article X to prohibit the Concessionaire from operating in the Park for the use described in this Agreement. The Concessionaire may operate according to the custom of the industry so long as the use or presence of Hazardous Materials is strictly and properly monitored according to all applicable governmental requirements. The Concessionaire shall not be liable for Hazardous Conditions that existed in the Park prior to the execution of the Agreement. 8.2 DISCLOSURE, WARNING AND NOTICE OBLIGATIONS. The Concessionaire shall comply with all laws, ordinances and regulations regarding the disclosure of the presence or danger of Hazardous Materials. The Concessionaire acknowledges and agrees that all reporting and warning obligations required under the Hazardous Materials Laws are the sole responsibility of the Concessionaire, whether or not such Hazardous Materials Laws permit or require the Trust to provide such reporting or warning, and the Concessionaire shall be solely responsible for complying with --Hazardous Materials Laws regarding the disclosure of, - the presence or danger of Hazardous Materials. The Concessionaire shall immediately. notify the Trust, in writing, --=of_--any- _complaints, • notices, warning, reports , or_asserted violations of which . the :•.-Concessionaire becomes 'aware relating to Hazardous' Materials on or about the -Park. •T_he Concessionaire shall also immediately notify the Trust if the Concessionaire knows or has .reason.to believe a.complaint, notice, warning, report or violation will be released on or about the Park. 16 8.3 SURVIVAL.OF THE CONCESSIONAIRE'S OBLIGATION. The respective rights and obligations of the Trust and the Concessionaire under ArticIeVIII entitled "Hazardous Materials" shall survive the expiration or earlier termination of this Agreement and shall remain in effect until the applicable statute of limitations has lapsed. ARTICLE IX SPECIAL ASSESSMENTS OR TAXES CONCESSIONAIRE TO PAY. During the term hereof, Concessionaire covenants and agrees to pay before delinquency all Taxes assessed as a result of or in connection with the Concession. In the event Concessionaire appeals' a Tax, Concessionaire shall immediately notify Trust of its intention to appeal said Tax and shall furnish and keep in effect a surety bond of a responsible and substantial surety company acceptable to the Trust or other Security satisfactory to the Trust in an amount sufficient to pay one hundred percent of the contested Tax with all interest on it and costs and expenses, including attorneys' fees, to be incurred in connection with the appeal and amount of tax owed. As provided in Article XII, Concessionaire agrees to indemnify, defend and hold harmless the City, the Trust and the Army Corps against a Tax that is assessed against them as a result of or in connection with the Concession or Concessionaire. ARTICLE X INSPECTION OF BOOKS AND RECORDS 10.1 BOOKS AND RECORDS. During the term of this Agreement and any extension thereto, the Concessionaire shall maintain and keep, or cause to be maintained and kept at the Concession Area, or such other location in Miami -Dade County approved in writing by the Executive Director, the complete and accurate books; records and accounting of the Gross Revenues, as defined herein, and any other supporting documentation for such determination. The Trust, or its duly authorized agents or representatives, during the hours of 9:00 AM to 5:00 PM, Monday through Friday, with five (5) days prior written notice, shall have the right to examine and inspect such books and records, which shall exclude specifically any financial data andcorporate records not related to the Concession, but shall include copies of existing agreements in that regard. The Concessionaire shall keep and preserve, or cause to be kept and preserved, said -records for not less than three (3) years after the payment of the Concession Fee due under the terms hereof. All books records .and accounts including sales slips, cash register tapes, bank - statements or'duplicate=deposit slips, mail orders, telephone orders, settlement report sheetof transactions .with subcontractors, Concessionaire's sales tax returns applicable to Gross Revenues :and all other .supporting records, shall be available for inspection 17 and audit by the Trust, or its duly authorized agents or representatives, during the hours of 9:00 AM to 5:00 PM, Monday through Friday, and shall be maintained in accordance with generally accepted ,.accounting procedures. Concessionaire must provide point of sale machines or such other cash registers or accounting control equipment deemed reasonably necessary and 'consented to by the Trust's Executive Director, for proper control of cash and payments whether such transaction is a cash or credit transaction. For the same period of time, Concessionaire shall also retain copies of all sales tax returns covering its management and operation of the Concession, and any other governmental tax or other returns which show Concessionaire's sales therein, and shall, upon demand, deliver photographic copies thereof to the Trust. The Concessionaire will cooperate with the Trust's internal auditors (or such other auditors designated by Trust) in order to facilitate the Trust's examination of records and accounts. 10.2 AUDITS. The Trust may inspect the books and records of the Concessionaire relating to the performance of this agreement, and shall be permitted to conduct an audit pursuant to Section 18-102 of the City of Miami Code of Ordinances. With each audit, the Concessionaire shall pay to the Trust any unpaid balance of the Trust Fee, if any, and the Trust shall refund overpayments, if any, and in either case payment shall be made within thirty (30) days notice from the Trust as to the results of the audit. The Concessionaire shall allow the Trust or the auditors of the Trust to inspect all or any part of the compilation procedures for the aforesaid monthly reports. Said inspection shall be reasonable and is at the sole discretion of the Trust. Records shall be available Monday through Friday, inclusive, between the hours of 9:00 AM and 5:00 PM at the Concession Area, or at such other location in Miami which may be approved by the Trust's Executive Director. The acceptance by Trust of payments of the Trust Fee shall be without prejudice to Trust's right to conduct an audit in order to verify the amount of annual Gross Revenues made by Concessionaire in connection with or as a result of the Concession. ARTICLE Xi MODIFICATIONS AND IMPROVEMENTS FOR CONCESSION OPERATIONS 11.1 MODIFICATIONS. The Concessionaire shall not make, or permit to be made, any Modifications without the prior written consent of the Executive Director. The Trust consents to the Modifications to the Concession Area as delineated in Attachment D. . :If the -Executive Director grants consent for Modifications to be made to the Concession Area, then: 18 (I) Modifications shall be performed in a good and workmanlike manner in accordance with all applicable Federal, State and local statutes, laws, ordinances and regulations, as they presently,exist.and :as,they.may be amended hereafter. (ii) All Modifications'shall be .made -at the Concessionaire's sole cost and expense. (iii) The Concessionaire shall pay for and obtain the necessary and applicable permits in compliance with all Federal, State and local laws, rules and regulations in connection with any Modification made by the Concessionaire to the Concession Area. (iv) Upon the termination of the Agreement, Concessionaire shall remove the Modifications from the Concession Area. If any part of the Park is in any way damaged by the removal of such items, said damage shall be repaired by the Concessionaire at its sole cost and expense. (v) Should the Concessionaire fail to repair any damage caused by the Concessionaire to the Park within thirty (30) days after receipt of written notice from the Executive Director directing the required repairs, the Concessionaire shall be in default and the Trust shall cause the Concession Area to be repaired at the sole cost and expense of the Concessionaire. The Concessionaire shall pay the Trust the full cost of such repairs within thirty (30) days of receipt of an invoice indicating the cost of such required repairs. Failure to pay such invoice within such time period shall result in the Trust applying the Deposit towards the past due amount. This provision shall survive the termination of this Agreement. 11.2 LIENS AND ENCUMBRANCES. The Concessionaire shall keep the Park free and clear of any liens and encumbrances in connection with the Concession. Nothing in this Agreement shall be construed as constituting the consent or request of the Trust, expressed . or implied, by inference or otherwise, to any contractor, subcontractor, laborer or material men to perform of any labor or the furnishing of any materials for any specific Modification, or repair of or to the Concession Area or any other portion of the Park, nor as giving the Concessionaire the right, power or authority to contract for or permit the rendering of any services or the furnishing of any materials that would give rise to the filing of any mechanics liens or other encumbrance against the the City or the Trust's interest in the Park, respectively. If any lien shall at any time be filed against the City, the Trust or the Army Corps as a result of any Modification undertaken by the Concessionaire, the Concessionaire shall cause it to be discharged of record within twenty (20) days after the date the Concessionaire has knowledge of its filing or institute an action challenging the lien. If the 'Concessionaire shall failto=discharge a lien; or;. Concessionaire shalt._:institute an c action_ with the :appropriate Court seeking the discharge within that iperibd, thenrin addition=to .any other -right or remedy, the Trust may, but shall not be obligated to, :.discharge:the_len either by: -paying the amount claimed to be due or by procuring the .discharge of_the lien -.by deposit in court *of bonding, or in the event the Trust shall be 19 entitled, if it so elects, to compel the prosecution of any action for the foreclosure of the lien by the lienor and to pay the amount of the judgment, if any, in favor of the lienor with interest, costs and. allowances:.with the :,understanding,.that all amounts paid by the Trust shall constitute Additional Fee due and payable under this Agreement and shall be repaid to the Trusty the Concessionaire immediately upon rendition of an invoice or bill by the Trust. The Concessionaire shall not be required to pay or discharge any lien so long as the Concessionaire shall in good faith proceed to contest the lien by appropriate proceedings and if the Concessionaire shall have given notice in writing to the Trust of its intention to contest the validity of the lien and shall furnish and keep in effect a surety bond of a responsible and substantial surety company reasonably acceptable to the Trust or other security reasonably satisfactory to the Trust in an amount sufficient to pay one hundred ten (110) percent of the amount of the contested lien claim with all interest on it and costs and expenses, including reasonable attorneys' fees, to be incurred in connection with it. ARTICLE XII INDEMNIFICATION AND INSURANCE 12.1 INDEMNIFICATION AND HOLD HARMLESS. The Concessionaire shall indemnify, defend and hold harmless the Indemnitees and each of them from and against all loss, costs, penalties, fines, damages, claims, expenses (including attorney's fees) or liabilities (collectively referred to as "Liabilities") by reason of any injury to or death of any person or damage to or destruction or loss of any property arising out of, resulting from, or in connection with (i) the performance or non-performance of the Concession services contemplated by this Agreement, which is or is alleged to be directly or indirectly caused, in whole or in part, by any act, omission, default or negligence (whether active or passive) of the Concessionaire or its employees, agents or Subcontractors (collectively referred to as "Concessionaire"), regardless of whether it is, or is alleged to be, caused in whole or part (whether joint, concurrent or contributing) by any act, omission, default- or negligence (whether active or passive) of the Indemnitees, or any of them or (ii) the failure of the Concessionaire to comply with any of the paragraphs herein or the failure of the Concessionaire to conform to statutes, ordinances, or other regulations or requirements of any governmental authority, federal or state, in connection with the performance of this Agreement. The Concessionaire expressly agrees to indemnify and hold harmless the Indemnitees, or any of them, from and against all liabilities, which may be asserted by an employee or former employee of the Concessionaire, or any of its Subcontractors, as provided above, for which the Concessionaire's liability to such employee or former employee would otherwise be limited to payments under state Workers' Compensation or similar laws. . . . , .In ;_case, anyi:action or .proceeding shall be brought against Indemnitees by F i reasonof any claim the Concessionaire upon notice from..Indemnitees shall: defend._ the same .at the. Concessionaire's expense by counsel -approved in writing by Indemnitees. Indemnitees reserve the right to defend themselves. 20 The Concessionaire shall immediately notify the Indemnitees, in writing, of any claim or action filed, of whatever nature, arising out of the use or operation of the Concession Area'by the'Concessionaire;>its agents, contractors, employees, servants or invitees. The Concessionaire shall also immediately notify the Indemnitees if the Concessionaire knows or has reason to believe a claim or action will be filed, of whatever nature, arising out of the operation of the Concession or use of the Concession Area by the Concessionaire, its agents, contractors, employees, servants or invitees. The Concessionaire shall also indemnify, protect, defend and hold the Trust free and harmless from and against any and all claims, liabilities, penalties, forfeitures, losses and expenses (including attorneys' fees) or death of or injury to any person or damage to any property whatsoever, arising from or caused in whole or in part, directly or indirectly, by the presence in or about the Park of any Hazardous Materials placed in or about the Park by the Concessionaire or at the Concessionaire's direction or used by the Concessionaire or by the Concessionaire's failure to comply with any Hazardous Materials Law or in connection with any removal, remediation, cleanup, restoration and materials required hereunder to return the Concession Area and any other property of whatever nature to their condition existing prior to the appearance of the Hazardous Materials. The Concessionaire shall hold harmless and indemnify the Indemnitees for any errors in the provision of the Concession or for any fines, which may result from the Concessionaire's services. 12.2 INSURANCE. Prior to the installation of any equipment, Modifications, or personal property within the Park, the. Concessionaire shall provide the Trust with a certificate of insurance acceptable to the Trust and the City Risk Administrator, and the Concessionaire shall, and at all times thereafter during the term hereof, maintain such insurance coverage as is set forth on Attachment tE, attached hereto. The Indemnitees shall be named additional insureds on all insurance policies required herein. All such insurance, including renewals, shall be subject to the approval of the City for adequacy of protection and evidence of such coverage shall be furnished to the City on Certificates of Insurance indicating such insurance to be in force and effect and providing that it will not be canceled during the performance of the services under this contract without thirty (30) calendar days prior written notice to the City: Completed Certificates of Insurance shall be filed with the City prior to the performance of services hereunder, provided, ..however, .that the Concessionaire shall at any time upon request file duplicate copies of the policies of such insurance with the City. If; :in -the judgment of the City, prevailing conditionswarrant the' provision by`the .; Concessionaire _of additional liability insurance coverage or coverage, which is different - : in kind, the City reserves the right to require the provision by the Concessionaire of an reasonable:amount or:.type of coverage different from the amounts or kind previously ,-required_and shall -afford written notice of such change in requirements thirty (30) days 21 prior to the date on which the requirements shall take effect. Should the Concessionaire fail or refuse to satisfy the requirement of changed coverage within thirty (30) days 'following they City'swritten notice, this Contract shall be considered terminated on the date that the required change in policy coverage would otherwise take effect; provided, however, that this Agreement shall not be terminated if the additional insurance coverage specified is not available from the insurance industry. ARTICLE XIII DAMAGE OR LOSS TO THE CONCESSIONAIRE'S PROPERTY 13.1 RISK OF LOSS. The Indemnitees assume no responsibility whatsoever for any person or property that enters any area that Concessionaire or its invitees use as a result of or in connection with the Concession. In consideration of the execution of this Agreement by the Trust, the Concessionaire releases the Indemnitees, of any and all liability for any loss, injury, death, theft, damage or destruction to any persons or of any goods or personal property, which may occur in or about the Concessionaire including such circumstances where it could be alleged that the Indemnitees or their contractors were negligent. 13.2 NOTICE OF DAMAGES OR INJURIES. The Concessionaire shall give the Trust immediate written notice of any fire, damage or injury occurring at the Concession Area. 13.3 VANDALISM AND THEFTS. Where vandalism or theft occurs to the Concessionaire's machines, equipment, trade fixtures or operation, it shall be the sole responsibility and liability of the Concessionaire to insure, repair or replace damaged or stolen equipment at the Concessionaire's expense within forty-eight (48) hours. Upon request of the Concessionaire, the Executive Director may grant an additional period of time for the repair and replacement of the stolen or vandalized property. All vandalism or theft shall be reported to the Executive Director immediately upon discovery. 13.4 THEFT AND LOSS LIABILITY. The Trust will not be responsible for any of the Concessionaire's internal losses or thefts, and any such losses must be borne solely by the Concessionaire out of its own funds they may not be used to diminish or be absorbed by payment due the Trust. ARTICLE XIV ASSIGNMENT 14.1 ASSIGNMENT. The Concessionaire shall not sell, assign or otherwise`transfer _.;�:the. :Concession Apr, any,rights._and privileges under. this Agreement or its ownership or contro! of the Concession to a third party without thewritten consent of the Bayfront' Park Management Trust, which may be withheld. ARTICLE XV SIGNAGE 22 15.1 PROMOTIONAL SIGN PLACEMENT. The Concessionaire shall be permitted to have a maximum of three •(3) promotional, signs within the Park, which includes one promotional sign in the Concession Area. Promotional signs shall only include the Concessionaire's name and information that is directly related to the Concession. The Executive Director shall approve, in his or her sole discretion, the placement of the Concessionaire's promotional signs in the Park and determine its compatibility with the appearance of the Park. The Concessionaire shall not permit any signs or advertising matter to be placed on any portion of the Concession Area. 15.2 SIGN MAINTENANCE. The Concessionaire shall, at its sole cost and expense, install, provide, maintain its sign, decoration, advertising matter or other media as may be permitted hereunder in good condition and repair at all times ARTICLE XVI NOTICE All notices or other communications, which shall or may be given pursuant to this Agreement shall be in writing and shall be delivered certified mail addressed to the parties at their respective addresses indicated below or as the same may be changed in writing from time to time. Such notice shall be deemed given on the day on which personally served, or if by certified mail, on the fifth day after being posted or the date of actual receipt, whichever is earlier. To the Concessionaire: To the Trust: Julia Conway Conway Tours, Inc. d/b/a Big Bus Tours/Gray Line Miami 95 NW 23 Street Miami, Florida 33127 Timothy F. Schmand Executive Director Bayfront Park Management Trust. 301 N. Biscayne Blvd. Miami, Florida 33132 With a copy to: Wth a copy to: Steven K. Baird, P.A. 5981 NE 6th Avenue Miami, Florida 33137 ;, 1,;= Julie O. Bru City Attorney City of Miami 444 SW 2 Avenue, Suite 945 �,,. . Miami, Florida 33130 ARTICLE XVII DEFAULT 23 If Concessionaire fails to comply with any term or condition of this Agreement, or fails to perform any .obligations :hereunder, 'then Concessionaire shall be in default. Upon the occurrence of a default hereunder, the Concessionaire shall have thirty (30) days from its receipt of written notice to cure the default(s), except that in the event of equipment damage, where the Concessionaire is unable to obtain replacement parts from the manufacturer within the thirty (30) days, the Executive Director shall extend such time period by a reasonable period of time. Failure to cure the default(s) within such period may, in addition to all remedies available to it by law, immediately result in termination of this Agreement by the Trust. The Concessionaire understands and agrees that termination of this Agreement under this section shall not release Concessionaire from any obligation accruing prior to the effective date of termination. ARTICLE XVIII CONTRACT DISPUTE RESOLUTION 18.1 DISPUTE RESOLUTION PROCEDURE. The Concessionaire understands and agrees that all disputes between the Concessionaire and the Trust based upon an alleged violation of the terms of this Agreement by the Trust shall be resolved in accordance with the procedure outlined below, prior to the Concessionaire being entitled to seek judicial relief in connection therewith. Disputes less than $5,000: The Executive Director, after obtaining the approval of the City Attorney, shall have the authority to resolve controversies between the Concessionaire and the Trust, which arise under, or by virtue of this Agreement; Disputes between $5,000 - $25,000: The Executive Director's decision shall be approved or disapproved by the City Attorney and the Trust. Disputes more than $25,000: In casesinvolving an amount greater than $25,000.00, the City Commission must approve the Trust's decision. Such authority extends, without limitation, to controversies based upon breach of contract, mistake, misrepresentation or lack of complete performance, and shall be invoked by a contractual party by submission of a protest to the Executive Director. 18.2 CONTRACT DISPUTE DECISIONS. If a dispute is not resolved by mutual consent, the Executive Director shall promptly render a written report stating the reasons for the action taken by Executive Director, the Trust or the City Commission, as - applicable, which shall be final and conclusive. A copy of the decision shall be ..,immediately provided to_ the protesting party, along with a notice of such party's right to seek judicial relief,. provided that the protesting party shall not be entitled -to such judicial ; relief without,firsthaving followed the procedure set forth in this section. 24 ARTICLE XIX TERMINATION OF CONCESSION AGREEMENT 19.1 TERMINATION BY THE TRUST FOR CAUSE. In the event the Concessionaire fails to cure a default as set forth at Article XVII the Trust shall have the right to terminate this Agreement. Upon termination, the Concessionaire's rights to manage and operate the Concession will end forthwith. 19.2 TERMINATION BY EITHER PARTY WITHOUT CAUSE. Either party may terminate this Agreement at its sole option, for any reason whatsoever, upon at least thirty (30) days written notice to the other Party. Upon such termination, the Concessionaire agrees to waive any claims for damages, including loss of anticipated fees and profits, arising out of the termination of this Agreement. The Concessionaire or its personal property shall not continue to be in the Park thirty (30) days after the Termination Date. If the Concessionaire or its personal property remains within the Park after thirty (30) days following the Termination Date, the Trust shall utilize any and all remedies at law or at equity to effectuate removal of the Concessionaire or its personal property. 19.3 TERMINATION BY THE CONCESSIONAIRE WITH CAUSE. In the event the Trust defaults or fails to observe the terms and conditions of this Agreement in any material aspect, the Concessionaire shall have the right to terminate the Agreement after notifying the Trust in writing of the action required to correct the problem and giving the Trust thirty (30) days from receipt of said notice to correct the problem. 19.4 RESTORATION OF THE PARK. At the expiration of the Term, or earlier termination of this Agreement, the Concessionaire shall no Longer provide Concession services to the Park and shall deliver to the Trust all keys that it has to any part of the Concession Area or the Concession Area. The Concessionaire shall return all facilities, equipment and other items furnished by the Trust, including any portion of the Park that may have been used by the Concessionaire, in the condition in which received, reasonable wear and tear excepted. It is agreed that, upon the expiration of the Term or earlier termination of this Agreement, Concessionaire shall be responsible for restoring the portions of the Park to their original condition, as may be shown in Attachment F. The Concessionaire will be responsible for all losses and damages to the Park resulting from its default, failure or negligence during the Term of this Agreement. If within .thirty (30) days of termination of this Agreement the Trust determines that any. ,part of the Park is damaged as . result of the Concession, and that such condition was .-not readily evident at -the time of the Concessionaire surrendered possession of the Concession Area, the Trust reserves the right to have the Concessionaire pay for the repairs: to said ..portions .-of the Park. This clause shall survive the expiration of this Agreement. •. 25 19.5 HAZARDOUS WASTE. Upon termination or expiration of this Agreement, the Concessionaire shall, at its sole cost and expense, cause all Hazardous Materials, including their storage devices placed in or about the Concession Area by the Concessionaire or at the Concessionaire's direction to be removed from the Concession Area and transported for use, storage or disposal in accordance and compliance with all applicable Hazardous Materials Laws. ARTICLE XX ABANDONMENT 20.1 ABANDONMENT If the Concessionaire shall vacate or abandon the Concession Area during the Term or Additional Term of this Agreement for a period of ten (10) consecutive days or thirty (30) days during a Concession Agreement Year, except as provided in this Agreement, the Trust, at its option and without serving notice elsewhere required in this Agreement, may either: (i) Take immediate possession of the Concession Area for the remainder of the Term or Additional Term, and contract with another person or corporation for the provision of Concession at the Concession Area In such event the Concessionaire shall remain liable for all obligations under this Agreement; or (ii) Cancel this Agreement; or (iii) Remove and store Concessionaire's Modifications and personal property at Concessionaire's expense. Such items shall otherwise be disposed of according to Florida law, as abandoned property. ARTICLE XXII UNAVOIDABLE DELAY AND IMPOSSIBILITY 22.1 UNAVOIDABLE DELAY. For the purpose of any of the provisions of this Agreement, neither the Trust nor the Concessionaire shall be considered in breach of or in default of any obligations under this Agreement in the event of an Unavoidable Delay, which results in impossibility of performance, in accordance with the provisions of Article below entitled "Performance of Obligations." -.-. '22.2 PERFORMANCE OF OBLIGATIONS. In the event of an Unavoidable Delay -resulting :in _,impossibility - of _performance, the time for performance of obligations, E. ,_ i<_ t_covenants, and/or agreements; which are affected by: the -Unavoidable ,Delay shall be extended for the period of time of the Unavoidable Delay or for such period of time as ::may -be necessary under the circumstances, provided that the party seeking the benefit of the provisions of this Article shall: 26 (a) As soon as reasonably possible, but no later than thirty (30) days after such party shall have become aware of the Unavoidable Delay, give notice, in writing to the other party°hereto-of-the.Unavoidable Delay, which notice shall specify, which of the obligations, covenants, and/or agreements of this Agreement the notifying party is unable to perform at the time of such notice and how the Unavoidable Delay has affected the party's performance of such obligations, covenants, and/or agreements; and (b) As soon as reasonably possible, the party claiming such an Unavoidable Delay shall commence and shall continue diligently the performance of such obligations, covenants, and/or agreements so delayed. ARTICLE XXIII MISCELLANEOUS 23.1 COMPLIANCE WITH LAWS. The Concessionaire shall comply with all applicable federal, state and local laws, regulations, orders, ordinances and codes pertaining to its performance under this Agreement. 23.2 INDEPENDENT CONTRACTOR. The Concessionaire and its employees and agents shall be deemed to be independent contractors, and not agents, employees or representatives of the Army Corps, the City or the Trust and shall not attain rights or benefits under the Civil Service or Pension Ordinances of the City nor any rights generally afforded classified or unclassified employees; further they shall not be entitled to the Florida Workers Compensation benefits as employees of the City or the Trust. 23.3 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the parties herein, their heirs, executors, legal representatives, successors and assigns. 23.4 AMENDMENTS. The Trust and the Concessionaire by mutual agreement shall have the right but not the obligation to amend this Agreement. Such amendments must be in writing and shall be effective only when approved by the Trust and signed by the Executive Director and the Concessionaire and shall be incorporated as a part of this Agreement. 23.5 AWARD OF CONCESSION AGREEMENT. The Concessionaire warrants that it has not employed or retained any person employed by the Trust to solicit or secure this :Agreement= and that it has not offered to pay, paid, or agreed to pay any person __employed by the :Trust any fee, commission, percentage, brokerage fee, or gift of any r:::kind. contingent upon or resulting from the award of this Agreement. 23.6 CONFLICT .OF -INTEREST: The Concessionaire is aware of the conflict of inter_est_;laws-of ,the City_.of Miami (Miami City Code _Chapter 2, Article V), Dade County, „Florida s(Dade County Code, .Article 2-11.1 et. seq.) and of the State of Florida as set 27 forth in the Florida Statutes, and agrees that it will fully comply in all respects with the terms of said laws and any future amendments thereto. 23.7 GOVERNING LAW. This Agreement shall be construed and enforced according to the laws of the State of Florida. 23.8 COURT COSTS AND ATTORNEYS' FEES. In the event that it becomes necessary for the Trust to institute legal proceedings to enforce the provisions of this Agreement, each party shall pay its own court costs unless otherwise provided by federal or state law. 23.9 SEVERABILITY. If any provision of the Agreement, or any paragraph, sentence, clause, phrase, or word, or the application thereof, is held invalid, the remainder of the Agreement shall be construed as if such invalid part were never included herein and the Agreement shall be and remain valid and enforceable to the fullest extent permitted by law. 23.10 WAIVER. No waiver of any provision hereof shall be deemed to have been made unless such waiver is in writing and signed by the Trust or the Concessionaire. The failure of either party to insist upon the strict performance of any of the provisions or conditions of this Agreement shall not be construed as waiving or relinquishing in the future any such covenants or conditions but the same shall continue and remain in full force and effect. 23.11 CAPTION. The captions contained in this Agreement are inserted only as a matter of convenience and for reference and in no way define, limit or prescribe the scope of this Agreement or the intent of any provisions thereof. 23.12 PUBLIC RECORDS. To the extent applicable to the Concessionaire, it shall comply with the Public Records Law, Florida Statutes, Chapter 119. The Concessionaire shall not be deemed to acknowledge the applicability of the Public Records Law to its operation by entering into this Agreement. 23.13 VENUE. Venue for any legal proceedings shall be Miami -Dade County. 23.14 REAFFIRMATION. The Concessionaire hereby reaffirms all of the representations contained in the Solicitation Documents which is incorporated by reference and made a part of this Agreement. 23.15 TIME.. :If a- provision in the Agreement does not clarify whether it is calculated in..calendar_.or:business days, then the days shall be calculated in calendar days. If ;the °_time that any :_act, duty or obligation becomes duefalls on a Saturday, Sunday or. holiday, then unless otherwise provided in this A reement, such ac t, ct, duty or obligation shall become due the next business day. 28 23.16 EXCLUSIVITY. The Trust represents, warrants and covenants to the Concessionaire that no other hop -on, hop -off bus tour operator will be contracted on or from the real property known as 8ayfront Park during the Term of this agreement. ARTICLE XXIV AMENDMENTS TO PLANS Pursuant to this Agreement, the Concessionaire shall submit an Operations Plan which shall be attached to and incorporated with this Agreement which has obtained Trust and Commission approval as Attachment C. The Trust shall approve, without additional Commission approval, any subsequent amendments to these aforementioned plans that solely pertain to the Concession Area. ARTICLE XXV ENTIRE AGREEMENT This Agreement represents the total agreement between the parties. All other prior agreements between the parties, either verbal or written, are superseded by this Agreement and therefore no longer valid. (Signature page follows) 29 IN WITNESS WHEREOF, the Parties hereto have caused this instrument to be executed, through their proper officials, the day and year first above written. Attest: THE CONCESSIONAIRE By: By: Print Name Print Name Print Title Print Title Date: Date: Attest: Print Name: Print Title: Date: Bayfront Park Management Trust, a limited agency and instrumentality of the City of Miami Timothy F. Schmand Executive Director Date: APPROVED AS TO FORM APPROVED AS TO INSURANCE AND CORRECTNESS REQUIREMENTS Julie O. Bru XXXXX 'City Attorney Risk Management Administrator Date: Date: 30 Attachment A Solicitation Documents RFP and Proposal City of Miami Request for Proposals (RFP) Purchasing Department Miami Riverside Center 444 SW 2^d Avenue, 61" Floor Miami, Florida 33130 Web Site Address: http://ci.miami.fl.us/procurement RFP Number: Title: Issue Date/Time: RFP Closing Date/Time: Pre -Bid Conference: Pre -Bid Date/Time: Pre -Bid Location: Deadline for Request for Clarification: Buyer: Hard Copy Submittal Location: Buyer E-Mail Address: Buyer Facsimile: 263248 RFP for Concessions/Food/Merchandise Plan and Operations for Bayfront Park 31-MAR-2011 03-MAY-2011 @ 14:00:00 Tuesday, April 19, 2011 at 3:OOPM Byrnes, Terry City of Miami - City Clerk 3500 Pan American Drive Miami FL 33133 -US tbyrnes@ci.miami.fl.us (305) 400-5230 Certification Statement Please quote on this form, if applicable, net prices for the item(s) listed. Return signed original and retain a copy for your. files. Prices should include all costs, including transportation to destination. The City reserves the right to accept or reject all or any part of this submission. Prices should be firm for a minimum of 120 days following the time set for closing of the submissions. In the event of errors in extension of totals, the unit prices shall govern in determining the quoted prices. We (I) certify that we have read your solicitation, completed the necessary documents, and propose to furnish and deliver, F.O.B. DESTINATION, the items or services specified herein. The undersigned hereby certifies that neither the contractual party nor any of its principal owners or personnel have been convicted of any of the violations, or debarred or suspended as set in section 18-107 or Ordinance No. 12271. All exceptions to this submission have been documented in the section below (refer to paragraph and section). EXCEPTIONS: We (I) certify that any and all information contained in this submission is true; and we (I) further certify that this submission is made without prior understanding, agreement, or connection with any corporation, firm, or person submitting a submission for the same materials, supplies, equipment, or service, and is in all respects fair and without collusion or fraud. We (I) agree to abide by all terms and conditions of this solicitation and certify that I am authorized to sign this submission for the submitter. Please print the following and sign your name: SUPPLIER NAME: ADDRESS: PHONE: FAX EMAIL- BEEPER: SIGNED BY: TITLE: DATE: ;FAILURE,TO COMPLETE, SIGN AND RETURN THISFORM SHALL DISQUALIFY THIS BID. -Page 2 of 37 ..:....;. Certifications Legal Name of Firm: Entity Type: Partnership, Sole Proprietorship, Corporation, etc. Address, City, State, Zip, Contact Name, Phone Number: Office Location: City of Miami, Miami -Dade County, or Other Occupational License Number: Occupational License Issuing Agency: Occupational License Expiration Date: Respondent certifies that (s) he has read and understood the provisions of City of Miami Ordinance No. 10032 (Section 18-105 of the City Code) pertaining to the implementation of a "First Source Hiring Agreement.": (Yes or No) Do you expect to create new positions in your company in the event your company was awarded a Contract by the City? (Yes or No) In the event your answer to question above is yes, how many new positions would you create to perform this work? Please list the title, rate of pay, summary of duties, number of positions, and expected length or duration of all new positions which might be created as a result of this award of a Contract. Will Subcontractor(s) be used? (Yes or No) Page 3 of.37 if the above answer is no, please indicate the name of the city (end user) department that your contract will serve: Provide brief description .of the projector service to be provided I/We hereby state compliance with the City of Miami Living Wage Ordinance, Section 18-556 through Section 18-559 as summarized in Section 1.40 of the General Terms and Condtions? (Yes or No) Page_4 of 37., Line: 1 Description: Ignore this item -does not apply Category: 16547-00 Unit of Measure: Job Unit Price: $ Number of Units: 1 Total: $ Page 5 of 37 Request for Proposals (RFP) 263248 Table of Contents Terms and Conditions 7 1. General Conditions 7 1.1. GENERAL TERMS AND CONDITIONS 7 2. Special Conditions 24 2.1. PURPOSE 74 2.2. DEADLINE FOR RECEIPT OF REQUEST FOR ADDITIONAL INFORMATION/CLARIFICATION 24 2.3. TERM OF CONTRACT 74 2.4. CITY OF MIAMI/BAYFRONT PARK MANAGEMENT TRUST 24 2.5. CONDITIONS FOR RENEWAL 24 2.6. NON -APPROPRIATION OF FUNDS 24 2.7. PROPOSERS MINIMUM QUALIFICATIONS 24 2.8. VOLUNTARY PRE -PROPOSAL CONFERENCE AND SITE VISIT 75 2.9. IP.REVOCABLE LETTER OF CREDIT / SECURITY 75 2.10. TRUST/CITY ACCESS TO FACILITY 25 2.11. BUSINESS OBJECTIVE 75 2.12. SAFETY MEASURES 7 6 2.13. EMPLOYEES ARE RESPONSIBILITY OF SUCCESSFUL PROPOSER(S) 96 2.14. MANAGEMENT REPORTS "6 2.15. PERFORMANCE REVIEW/INSPECTIONS 26 2.16. CONTRACT EXECUTION "6 2.17. FAILURE TO PERFORM 26 2.18. CONTRACT ADMINISTRATOR "7 2.19. INSURANCE REQUIREMENTS 27 2.20. SUBCONTRACTORS OF WORK SHALL BE IDENTIFIED 98 2.21. CAPITAL IMPROVEMENTS AND MAINTENANCE ?8 2.22. USE OF PREMISES 28 2.23. LICENSES AND PERMITS 79 2.24. DAMAGES TO PUBLIC/PRIVATE PROPERTY 79 2.25. PUBLIC CONVENIENCE AND SAFETY 29 2.26. TERMINATION 29 2.27. ADDITIONAL TERMS AND CONDITIONS 79 2.28. INTERNAL CONTROLS 30 2.29. GROSS RECEIPTS .... 30 2.30. REPAIRS AND REPLACEMENTS 30 2.31. COMPENSATION TO THE TRUST 30 2.32. CHANGES/ALTERATIONS/ADDENDA 30 2.33. ACCOUNTING AND FISCAL CONTROLS 30 2.34. ADDITIONAL SERVICES 31 2.35. RECORDS 31 2.36. TRUTH IN NEGOTIATION CERTIFICATE 31 2.37. OPTIONAL CONCEPTS 31 3. Specifications 32 3.1. SPECIFICATIONS/SCOPE OF WORK 32 4. Submission Requirements 34 • 4.1. SUBMISSION REQUIREMENTS 34 5. Evaluation Criteria 37 5.1. EVALUATION/SELECTION PROCESS AND CONTRACT AWARD 37 Page 6 of 37 Request for Proposals (RFP) 263248 Terms and Conditions 1. General Conditions 1.1. GENERAL TERMS AND CONDITIONS Intent: The General Terms and Conditions described herein apply to the acquisition of goods/equipment/services with an estimated aggregate cost of S25,000.00 or more. Definition: A formal solicitation is defined as issuance of an Invitation for Bids, Request for Proposals, Request for Qualifications, or Request for Letters of Interest pursuant to the City of Miami Procurement Code and/or Florida Law, as amended. Formal Solicitation and Solicitation shall be defined in the same mariner herein. 1.1. ACCEPTANCE OF GOODS OR EQUIPMENT -.Any good(s) orequipment delivered under this formal solicitation, if applicable, shall remain theproperty of the seller until a physical inspection and actual usage of the good is made, and thereafter is accepted as satisfactory to the City. It must comply with the terms herein and be fully in accordance with specifications and of the highest quality. In the event the goods/equipment supplied to the City are found to be defective or does not conform to specifications, the City reserves the right to cancel the order upon written notice to the Contractor and return the product to the Contractor at the Contractor's expense. 1.2. ACCEPTANCE OF OFFER - The signed or electronic submission of your solicitation response shall be considered an offer on the part of the bidder/proposer; such offer shall be deemed accepted upon issuance by the City of a purchase order. 1-3. ACCEPTANCE/REJECT1ON — The City reserves the right to accept or reject any or all responses or parts of after opening/closing date and request re -issuance on the goods/services described in the formal solicitation. In the event of such rejection, the Director of Purchasing shall notify all affected bidders/proposers and make available a written explanation for the rejection. The City also reserves the right to reject the response of any bidder/proposer who has previously failed to properly perform under the terms and conditions of a contract, to deliver on time contracts of a similar nature, and who is not in a position to perform the requirements defined in this formal solicitation. The City further reserves the right to waive any irregularities or minor informalities or technicalities in any or all responses and may, at its discretion, re -issue this formal solicitation. 1.4. ADDENDA — It is the bidder's/proposer's responsibility to ensure receipt of all Addenda. Addenda are available at the City's website at: http:/!www_ci.miami.fl.us/procurement 1.5. ALTERNATE RESPONSES MAY BE CONSIDERED - The City may consider one (l) alternate response from the same Bidder/Proposer for the same formal solicitation; provided, that the alternate response offers a different product that meets or exceeds the formal solicitation requirements. In order for the City to consider an alternate response, the Bidder/Proposer shall complete a separate Price Sheet form and shall mark "Alternate Response". Alternate response shall be placed in the same response. This provision only applies to formal solicitations for the procurement of goods, services, items, equipment, materials, and/or supplies. 1.6. ASSIGNMENT - Contractor agrees not to subcontract, assign, transfer, convey, sublet, or otherwise dispose of the resulting Contract, or any or all of its right, title or interest herein, without City of Miami's prior written consent. - 1.7: ATTORNEY'S FEES - In connection with any litigation; mediation -and arbitration arising out of this Contract, the prevailing party shall be entitled to recover its costs and reasonable attorney's fees through and including appellate litigation and any post -judgment proceedings. 1.8: AUDIT RIGHTS AND RECORDS RETENTION - The Successful Bidder/Proposer agrees "to ',provide access at all reasonable times to the City, or to any of its duly authorized representatives, to any books, documents, papers, and records of Contractor which are directly pertinent to this formal solicitation, • for the purpose of audit, examination, excerpts, and transcriptions. -The Successful Bidder/Proposer shall :maintain and retain any and all of the books; documents, papers and records pertinent to the Contract for Request for Proposals (RFP) 263248 three (3) years after the City makes final payment and all other pending matters are closed. Contractor's failure to or refusal to comply with this condition shall result in the immediate cancellation of this contract by the City. 1.9. AVAILABILITY OF CONTRACT STATE-WIDE - Any Governmental, not -for -profit or quasi -governmental entity in the State of Florida, may avail itself of this contract and purchase any and all goods/services, specified herein from the successful bidder(s)/proposer(s) at the contract price(s) established herein, when permissible by federal, state, and local laws, rules, and regulations. Each Governmental, not -for -profit or quasi -governmental entity which uses this formal solicitation and resulting bid contract or agreement will establish its own contract/agreement, place its own orders, issue its oum purchase orders, be invoiced there from and make its own payments, determine shipping ternis and issue its own exemption certificates as required by the successful bidder(s)/proposer(s). 1.10. AWARD OF CONTRACT: A. The Formal Solicitation, Bidder's/Proposer's response, any addenda issued, and the purchase order shall constitute the entire contract, unless modified in accordance with any ensuing contract/agreement, amendment or addenda. B. The award of a contract where there are Tie Bids Will be decided by the Director of Purchasing or designee in the instance that Tie Bids can't be determined by applying Florida Statute 287.087, Preference to Businesses with Drug -Free Workplace Programs. C. The award of this contract may be preconditioned on the subsequent submission of other documents as specified in the Special Conditions or Technical Specifications. Bidder/Proposer shall be in default of its contractual obligation if such documents are not submitted in a timely manner and in the form required by the City. Where Bidder/Proposer is in default of these contractual requirements, the City, through action taken by the Purchasing Department, will void its acceptance of the Bidder's/Proposer's Response and may accept the Response from the next lowest responsive, responsible Bidder or Proposal most advantageous to the City or re -solicit the City's requirements. _The City, at its sole discretion, may seek monetary restitution from Bidder/Proposer and its bid/proposal bond or guaranty, if applicable, as a result of damages or increased costs sustained as a result of the Bidder's/Proposer's default. D. The term of the contract shall be specified in one of three documents which shall be issued to the successful Bidder/Proposer. These documents may either be a purchase order, notice of award and/or contract award sheet. E. The City reserves the right to automatically extend this contract for up to one hundred twenty (120) calendar days beyond the stated contract term in order to provide City departments with continual service and supplies while a new contract is being solicited, evaluated, and/or awarded. If the right is exercised, the City shall notify the Bidder/Proposer, in writing, of its intent to extend the contract at the same price, terms and conditions fora specific number of days. Additional extensions over the first one hundred twenty (120) day extension may occur, if; the City and the Successful Bidder/Proposer are in mutual agreement of such extensions. F. Where the contract involves a single shipment of goods to the City, the contract term shall conclude upon completion of the expressed or implied warranty periods. G. The City reserves the right to award the contract on a split -order, lump sum or individual -item basis, or such combination as shall best serve the interests of the City unless otherwise specified. H. A Contract/Agreement may be awarded to the Bidder/Proposer by the City Commission based upon the minimum qualification requirements reflected herein. As a result of a RFP, RFQ, or RFLI. the City reserves the right to execute or not execute, as applicable, an Agreement with the Proposer, whichever is -determined to be in the City's best interests. Such agreement will be furnished by the City, will contain. certain terms as are in the City's best interests, and will be subject to approval as to legal form by the City Attorney. • .•1.1 L BID BOND/ BID.SECURITY - A cashier's or certified check,.ora Bid Bond, signed by,a.recognized. • :surety company that'is licensed to do business in the State of Florida, payable to the City of Miami, for the amount.bid is -required froin'all bidders/proposers, if so indicated under the Special Conditions. This check or bond guarantees that a bidder/proposer will accept the order or contract/agreement, as bid/proposed, if it • isawarded to:bidder/proposer. Bidder/Proposer. shall forfeit bid deposit to the.City should City award Page 8 of 37 Request for Proposals (RFP) 263248 contract/agreement to Bidder/Proposer and Bidder/Proposer fails to accept the award. The City reserves the right to reject any and all surety tendered to the City. Bid deposits are returned to unsuccessful bidders/proposers within ten (10) days after the award and successful bidder's/proposer's acceptance of award. If sixty (60) days have passed after the date of the formal solicitation closing date, and no contract has been awarded, all bid deposits will be returned on demand. 1.12. RESPONSE FORM (HARDCOPY FORMAT) - All fonns should be completed, signed and submitted accordingly. 1.13. BID SECURITY FORFEITED LIQUIDATED DAMAGES - Failure to execute an Agreement and/or file an acceptable Performance Bond, when required, as provided herein, shall be just cause for the annulment of the award and the forfeiture of the Bid Security to the City, which forfeiture shall be considered, not as a penalty, but in mitigation of damages sustained. Award may then be made to the next lowest responsive, responsible Bidder or Proposal most advantageous to the City or all responses may be rejected. 1.14. BRAND NAMES - If and wherever in the specifications brand names, makes, models, names of any manufacturers, trade names; or bidder/proposer catalog numbers are specified, it is for the purpose of establishing the type, function, minimum standard of design, efficiency, grade or quality of goods only. When the City does not wish to rule out other competitors' brands or makes, the phrase "OR EQUAL" is added. When bidding/proposing an approved equal, Bidders/Proposers will submit, with their response, complete sets of necessary data (factory information sheets, specifications, brochures; etc.) in order for the City to evaluate and determine the equality of the item(s) bid/proposed. The City shall be the sole judge of equality and its decision shall be final. Unless otherwise specified, evidence in the form of samples may be requested if the proposed brand is other than specified by the City. Such samples are to be furnished after formal solicitation opening/closing only upon request of the City. If samples should be requested, such samples must be received by the City no later than seven (7) calendar days after a formal request is made. 1.15. CANCELLATION - The City reserves the right to cancel all formal solicitations before its opening/closing. In the event of bid/proposal cancellation, the Director of Purchasing shall notify all prospective bidders/proposers and make available a written explanation for the cancellation. 1.16. CAPITAL EXPENDITURES - Contractor understands that any capital expenditures that the firm makes, or prepares to make, in order to deliver/perform the goods/services required by the City, is a business risk which the contractor must assume. The City will not be obligated to reimburse amortized or unamortized capital expenditures, or to maintain the approved status of any contractor. If contractor has been unable to recoup its capital expenditures during the time it is rendering such goods/services, it shall not have any claim upon the City. 1.17. CITY NOT LIABLE FOR DELAYS - It is further expressly agreed that in no event shall the City be liable for, or responsible to, the Bidder/Proposer/Consultant, any sub-contractor/sub-consultant, or to any other person for, or on account of, any stoppages or delay in the work herein provided for by injunction or other legal or equitable proceedings or on account of any delay for any cause over which the City has no control. 1.18. COLLUSION —Bidder/Proposer, by submitting a response, certifies that its response is made without previous understanding, agreement or connection either with any person, firm or corporation submitting a response for the same items/services or with the City of Miami's Purchasing Department or initiating department. The Bidder/Proposer certifies that its response is fair, without control, collusion, fraud or other illegal action. Bidder/Proposer certifies that it is in compliance with the Conflict of Interest and Code of Ethics Laws. The City will investigate all potential situations where collusion may have occurred and the City reserves the right to reject any and all bids/responses where collusion may have occurred. 1.19. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS - Contractor understands that • contracts between private entities and local governments are subject to certain laws and regulations, including laws pertaining to public records, conflict of interest, records keeping. etc. City and Contractor agree to comply with and observe all applicable laws, codes and ordinances_as.that,may_in anyway -affect the goods or equipment offered, including but not limited to: A. ---Executive Order 11246, which prohibits discrimination against any employee, applicant, or client because of race, creed, -color, national origin, sex, or age with regard to, but not limited to, the following:'" employment practices, rate of pay or other compensation methods, and training selection. Page 9 of 37 . . Request for Proposals (RFP) 263248 B. Occupational, Safety and Health Act (OSHA), as applicable to this Formal Solicitation. C. The State of Florida Statutes, Section 287.133(3)(A) on Public Entity Crimes. D. Environment Protection Agency (EPA), as applicable to this Formal Solicitation. E. Uniform Commercial Code (Florida Statutes, Chapter 672). F. Americans with Disabilities Act of 1990, as amended. G. National Institute of Occupational Safety Hazards (NIOSH), as applicable to this Formal Solicitation. H. National Forest Products Association (NFPA), as applicable to this Formal Solicitation. I. City Procurement Ordinance City Code Section 18, Article III. J. Conflict of Interest, City Code Section 2-611;61. K. Cone of Silence, City Code Section 18-74. .. L. The Florida Statutes Sections 218.73 and 218.74 on Prompt Payment. M. First Source Hiring Agreement, City Ordinance No. 10032, as applicable to this Formal Solicitation. Implemented to foster the creation of new and permanent jobs for City of Miami residents; requires as a condition precedent to the execution of service contracts including professional services. Lack of knowledge by the bidder/proposer will in no way be a cause for relief from responsibility. Non-compliance with all local, state, and federal directives, orders, and laws may be considered grounds for termination of contract(s). Copies of the City Ordinances may be obtained from the City Clerk's Office. 1.20. CONE OF SILENCE - Pursuant to Section 18-74 of the City of Miami Code, a "Cone of Silence" is imposed upon each RFP, RFQ, RFLI, or IFB after advertisement and terminates at the time the City Manager issues a written recommendation to the Miami City Commission. The Cone of Silence shall be applicable only to Contracts for the provision of goods and services and public works or improvements for amounts greater than S200,000. The Cone of Silence prohibits any communication regarding RFPs, RFQs, RFLI or IFBs (bids) between, among others: Potential vendors, service providers, bidders, lobbyists or consultants and the City's professional staff including, but not limited to, the City Manager and the City Manager's staff; the Mayor, City Commissioners, or their respective staffs and any member of the respective selection/evaluation committee. The provision does not apply to, among other communications: oral communications with the City purchasing staff, provided the communication is limited strictly to matters of process or procedure already contained in the formal solicitation document; the provisions of the Cone of Silence do not apply to oral communications at duly noticed site visits/inspections, pre -proposal or pre -bid conferences, oral presentations before selection/evaluation committees, contract negotiations during any duly noticed public meeting, or public presentations made to the Miami City Commission during a duly noticed public meeting; or communications in writing or by email at any time with any City employee, official or member of the City Commission unless specifically prohibited by the applicable RFP, RFQ, RFLI or IFB (bid) documents (See Section 2.2. of the Special Conditions); or communications in connection with the collection of industry comments or the perfonnance of market research regarding a particular RFP, RFQ, RFLI OR IFB by City Purchasing staff. Proposers or bidders must file a copy of any written communications with the Office of the City Clerk, which shall be made available to any person upon request. The City shall respond in writing and file a copy with the Office of the City Clerk, which shall be made available to any person upon request. Written - communications may be in the form of e-mail, with a copy to the Office of the City Clerk. In addition to any other penalties provided by law, violation of the Cone of Silence by any proposer or "bidder shall'render any award voidable. A violation by a particular Bidder, Proposer, Offeror, Respondent, • lobbyist •or consultant shall subject same to potential penalties pursuant to the City Code. Any person •-having personal knowledge of a violation of these provisions shall report such violation to the State -Attorney and/or may file a complaint with the Ethics Commission. Proposers or bidders should reference • Section 18-74 of the City of Miami Code for.further clarification: Page 10 of 37 Request for Proposals (RFP) 263248 This language is only a summary of the key provisions of the Cone of Silence. Please review City of Miami Code Section 18-74 for a complete and thorough description of the Cone of Silence. You may contact the City Clerk at 305-250-5360, to obtain a copy of same. 1.21. CONFIDENTIALITY - As a political subdivision, the City of Miami is subject to the Florida Sunshine Act and Public Records Law. If this Contract/Agreement contains a confidentiality provision, it shall have no application when disclosure is required by Florida law or upon court order. 1.22. CONFLICT OF INTEREST — Bidders/Proposers, by responding to this Formal Solicitation, certify that to the best of their knowledge or belief, no elected/appointed official or employee of the City of Miami is financially interested, directly or indirectly, in the purchase of goods/services specified in this Formal Solicitation. Any such interests on the part of the Bidder/Proposer or its employees must be disclosed in writing to the City. Further, you must disclose the name of any City employee who owns, directly or indirectly, an interest of five percent (5%) or more of the total assets of capital stock in your firm. 1.23. COPYRIGHT OR PATENT RIGHTS—.Bidders/Proposers warrant that there has been no violation of copyright or patent rights in manufacturing, producing, or selling the goods shipped or ordered and/or services provided as a result of this formal solicitation, and bidders/proposers agree to hold the City harmless from any and all liability, loss, or expense occasioned by any such violation. 1.24. COST INCURRED BY BIDDER/PROPOSER - All expenses involved with the preparation and submission of Responses to the City, or any work performed in connection therewith shall be borne by the B i dder(s)/Proposer(s). 1.25. DEBARMENT AND SUSPENSIONS (Sec 18-107) (a) Authority and requirement to debar and suspend. After reasonable notice to an actual or prospective Contractual Party, and after reasonable opportunity for such party to be heard, the City Manager, after consultation with the Chief Procurement Officer and the city attorney, shall have the authority to debar a Contractual Party, for the causes listed below, from consideration for award of city Contracts. The debarment shall be for a period of not fewer than three years: The City Manager shall also have the authority to suspend a Contractual Party from consideration for award of city Contracts if there is probable cause for debarment, pending the debarment determination. The authority to debar and suspend contractors shall be exercised in accordance with regulations which shall be issued by the Chief Procurement Officer after approval by the City Manager, the city attorney, and the City Commission_ (b) Causes for debarment or suspension. Causes for debarment or suspension include the following: (1) Conviction for commission of a criminal offense incident to obtaining or attempting to obtain a public or private Contract or subcontract, or incident to the performance of such Contract or subcontract. (2) Conviction under state or federal statutes of embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen property, or any other offense indicating a lack of business integrity or business honesty. (3) Conviction under state or federal antitrust statutes arising out of the submission of Bids or Proposals. (4) Violation of Contract provisions, which is regarded by the Chief Procurement Officer to be indicative of nonresponsibility. Such violation may include failure without good cause to perform in accordance with the terms and conditions of a Contract or to perform within the time limits provided in a Contract, provided that failure to perform caused by acts beyond the control of a party shall not be considered a basis for debarment or suspension. (5) Debarment or suspension of the Contractual Party by any federal, state or other governmental entity. (6) False certification pursuant to paragraph (c) below. -(7) Found in violation of a zoning ordinance or any other city ordinance or regulation and for which the violation remains noncompliant. -(8) - Found in violation of a zoning ordinance or any other city ordinance or regulation and for _ _ which a civil penalty or fine is due and owing to the city. _. Page 11 of 37 Request for Proposals (RFP) 263248 (9) Any other cause judged by the City Manager to be so serious and compelling as to affect the responsibility of the Contractual Party performing city Contracts. (c) Certification. All Contracts for goods and services, sales, and leases by the city shall contain a certification that neither the Contractual Party nor any of its principal owners or personnel have been convicted of any of the violations set forth above oT debarred or suspended as set forth in paragraph (b)(5). (d) Debarment and suspension decisions. Subject to the provisions of paragraph (a), the City Manager shall render a written decision stating the reasons for the debarnient or suspension. A copy of the decision shall be provided promptly to the Contractual Party, along with a notice of said party's right to seek judicial relief. 1.26. DEBARRED/SUSPENDED VENDORS —An entity or affiliate who has been placed on the State of Florida debarred or suspended vendor list may not submit a response on a contract to provide goods or services to a public entity, may not submit a response on a contract with a public entity for the construction or repair of a public building or public work, may not submit response on leases of real property to a public entity, may not award or perform work as a contractor, supplier, subcontractor, or consultant under contract with any public entity, and may not transact business with any public entity. 1.27. DEFAULT/FAILURE TO PERFORM - The City shall be the sole judge of nonperformance, which shall include any failure on the part of the successful Bidder/Proposer to accept the award, to furnish required documents, and/or to fulfill any portion of this contract within the time stipulated. Upon default by the successful Bidder/Proposer to meet any terms of this agreement, the City will notify the Bidder/Proposer of the default and will provide the contractor three (3) days (weekends and holidays excluded) to remedy the default. Failure on the contractor's part to correct the default within the required three (3) days shall result in the Contract being terminated and upon the City notifying in writing the contractor of its intentions and the effective date of the termination. The following shall constitute default: A. Failure to perform the work or deliver the goods/services required under the Contract and/or within the time required or failing to use the subcontractors, entities and personnel as identified and set forth, and to the degree specified in the Contract. B. Failure to begin the work under this Contract within the time specified. C. Failure to perform the work with sufficient workers and equipment or with sufficient materials to ensure timely completion. D. Neglecting or refusing to remove materials or perform new work where prior work has been rejected as nonconforming with the terms of the Contract. E. Becoming insolvent, being declared bankrupt, or committing any act of bankruptcy or insolvency, or making an assignment for the benefit of creditors; if the insolvency, bankruptcy, or assignment renders the successful Bidder/Proposer incapable of performing the work in accordance with and as required by the Contract. F. Failure to comply with any of the terms of the Contract in any material respect. All costs and charges incurred by the City as a result of a default or a default incurred beyond the time limits stated, together with the cost of completing the work, shall be deducted from any monies due or which may become due on this Contract. 1.28. DETERMINATION OF RESPONSIVENESS - Each Response will be reviewed to determine if it is responsive to the submission requirements outlined in the Formal Solicitation. A "responsive" response is one which follows the requirements of the formal solicitation, includes all documentation, is submitted in the format outlined in the formal solicitation, is of timely submission, and has appropriate signatures as required on each document. Failure to comply with these requirements may deem a Response non -responsive. 1.29. DISCOUNTS OFFERED DURING TERM OF CONTRACT - Discount Prices offered in the response shall be fixed after the award by the Commission, unless otherwise specified in the Special Terms and Conditions. Price discounts off the original prices quoted in the response will be accepted from successful Bidder(s)/Proposer(s) during the terms of the contract. Such discounts shall remain in effect for a minimum of 120 days from approval by the City Commission._ Any,_ discounts offered by a manufacturer to Bidder/Proposer will be passed on to the City. Page 12 of 37 Request for Proposals (RFP) 263248 1.30. DISCREPANCIES, ERRORS, AND OMISSIONS - Any discrepancies, errors, or ambiguities in the Formal Solicitation or addenda (if any) should be reported in writing to the City's Purchasing Department. Should it be found.necessary, a -written addendum will be incorporated in the Fonnal Solicitation and will become part of the purchase agreement (contract documents). The City will not be responsible for any oral instructions, clarifications, or other communications. A. Order of Precedence — Any inconsistency in this formal solicitation shall be resolved by giving precedence to the following documents, the first of such list being the governing documents. 1) Addenda (as applicable) 2) Specifications 3) Special Conditions 4) General Terms and Conditions 1.31. EMERGENCY /DISASTER PERFORMANCE - In the event of a hurricane or other emergency or disaster situation, the successful vendor shall provide the City with the commodities/services defined within the scope of this formal solicitation at the price contained within vendor's response. Further, successful vendor shall deliver/perform for the city on a priority basis during such times of emergency. 1.32. ENTIRE BID CONTRACT OR AGREEMENT - The Bid Contract or Agreement consists of this City of Miami Formal Solicitation and specifically this General Conditions Section, Contractor's Response and any written agreement entered into by the City of Miami and Contractor in cases involving RFPs, RFQs, and RFLIs, and represents the entire understanding and agreement between the parties with respect to the subject matter hereof and supersedes all other negotiations, understanding and representations, if any, made by and between the parties. To the extent that the agreement conflicts with, modifies, alters or changes any of the terms and conditions contained in the Formal Solicitation and/or Response, the Formal Solicitation and then the Response shall control. This Contract may be modified only by a written agreement signed by the City of Miami and Contractor. 133. ESTIMATED QUANTITIES —Estimated quantities or estimated dollars are provided for your guidance only. No guarantee is expressed or implied as to quantities that will be purchased during the contract period. The City is not obligated to place an order for any given amount subsequent to the award of this contract. Said estimates may be used by the City for purposes of determining the low bidder or most 'advantageous proposer meeting specifications. The City reserves the right to acquire additional quantities at the prices bid/proposed or at lower prices in this Formal Solicitation. 134. EVALUATION OF RESPONSES A.Rejection of Responses The City may reject a Response for any of the following reasons: 1) Bidder/Proposer fails to acknowledge receipt of addenda; 2) . Bidder/Proposer mistates or conceals any material fact in the Response ; 3) Response does not conform to the requirements of the Formal Solicitation; 4) Response requires a conditional award that conflicts with the method of award; 5) Response does not include required samples, certificates, licenses as required; and, 6) Response was not executed by the Bidder's/Proposer(s) authorized agent. The foregoing is not an all inclusive list of reasons for which a Response may be rejected. The City may reject and re -advertise for all or any part of the Formal Solicitation whenever it is deemed in the best interest of the City. B. Elimination From Consideration 1) A contract shall not be awarded to any person or firm which is in arrears to the City upon any debt or contract; or which is a defaulter as surety or otherwise upon any obligation to the City. -2) A-dontract may not be awarded to any person or firm which has failed to perform under the terms and -conditions of any previous contract with the City or deliver on time contracts of a similar nature. •-'3y A:contract may not be awarded to any person or firm which has been debarred by the City in accordance with the City's Debarment and Suspension Ordinance. Page 13 of 37 Request for Proposals (RFP) 263248 C. Determination of Responsibility 1) Responses will only be considered from entities who are regularly engaged in the business of providing the goods/equipment/services required by the Formal Solicitation. Bidder/Proposer must be able to demonstrate a satisfactory record of performance and integrity; and, have sufficient financial, material, equipment, facility, personnel resources, and expertise to meet all contractual requirements. The terns "equipment and organization" as used herein shall be construed to mean a fully equipped and well established entity in line with the best industry practices in the industry as determined by the City. 2) The City may consider any evidence available regarding the financial, technical and other qualifications and abilities of a Bidder/Proposer, including past performance (experience) with the City or any other governmental entity in making the award. 3) The City may require the Bidder(s)/Proposer(s) to show proof that they have been designated as an authorized representative of a manufacturer or supplier which is the actual source of supply, if required by the Fomtal Solicitation. 1.35. EXCEPTIONS TO GENERAL AND/OR SPECIAL CONDITIONS OR SPECIFICATIONS - Exceptions to the specifications shall be listed on the Response and shall reference the section. Any exceptions to the General or Special Conditions shall be cause for the bid (IFB) to be considered non -responsive. It also may be cause for a RFP, RFQ, or RFLI to be considered non -responsive; and, if exceptions are taken to the terms and conditions of the resulting agreement it may lead to terminating negotiations. 136. F.O.B. DESTINATION - Unless otherwise specified in the Formal Solicitation, all prices quoted/proposed by the bidder/proposer must be F.O.B. DESTINATION, inside delivery, with all delivery costs and charges included in the bid/proposal price, unless otherwise specified in this Formal Solicitation. Failure to do so may be cause for rejection of bid/proposal. 1.37. FIRM PRICES - The bidder/proposer wan -ants that prices, terms, and conditions quoted in its response will be firm throughout the duration of the contract unless otherwise specified in the Formal Solicitation. Such prices will remain firm for the period of performance or resulting purchase orders or contracts, which are to be performed or supplied over a period of time. • 138. FIRST -SOURCE HIRING AGREEMENT (Sec. 18-105) (a) The Commission approves implementation of the first -source hiring agreement policy and requires as a condition precedent to the execution of service contracts for facilities, services, and/or receipt of grants and loans, for projects of a nature that create new jobs, the successful negotiation of first -source hiring agreements between the organization or individual receiving said contract and the authorized representative unless such an agreement is found infeasible by the city manager and such finding approved by the City Commission at a public hearing. (b) For the purpose of this section, the following terms; phrases, words and their derivations shall have the following meanings: Authorized representative means the Private Industry Council of South Florida/South Florida Employment and Training Consortium; or its successor as local recipient of federal and state training and employment funds. Facilities means all publicly financed projects, including but without limitation, unified development projects, municipal public works; and municipal improvements to the extent they are financed through public money services or the use of publicly owned property. Grants and loans means, without limitation, urban development action grants (UDAG), economic development agency construction loans; loans from Miami Capital Development, Incorporated, and all federal and state grants administered by the city. Service contracts means contracts for the procurement of services by the city which include professional services. Services -includes, -without limitation, public works improvements; facilities, professional services, commodities, supplies, materials and equipment. (c) <__The authorized representative shall negotiate each first -source hiring agreement. (d) :,The primary beneficiaries of the first -source hiring agreement'shall'be`partieipants of the`eit Page 14 of 37 Request for Proposals (RFP) 263248 training and employment programs, and other residents of the city. 1.39. FLORIDA MINIMUM WAGE - The Constitution of the State of Florida, Article X, Section 24, states that employers shall pay employee wagesno less than the minimum wage for all hours worked in Florida. Accordingly, it is the contractor's and its' subcontractor(s) responsibility to understand and comply with this lorida constitutional minimum wage requirement and pay its employees the current established hourly minimum wage rate, which is subject to change or adjusted by the rate of inflation using the consumer price index for urban wage earners and clerical workers, CPI-W, or a successor index as calculated by the United States Department of Labor. Each adjusted minimum wage rate calculated shall be determined and published by the Agency Workforce Innovation on September 30th of each year and take effect on the following January 1st. At the time of responding, it is bidder/proposer and his/her subcontractor(s), if applicable, full responsibility to determine whether any of its employees may be impacted by this Florida Law at any given point in time during the term of the contract. If impacted, bidder/proposer must furnish employee name(s), job titie(s), job description(s), and current pay rate(s). Failure to submit this information at the time of submitting a response constitute successful bidder'slproposer's acknowledgement and understanding that the Florida Minimum Wage Law will not impact its .prices throughout the .term of contract and waiver of any contractual price increase request(s). The City reserves the right to request and successful bidder/proposer must provide for any and all information to make a wage and contractual price increase(s) determination. 1.40. GOVERNING LAW AND VENUE - The validity and effect of this Contract shall be governed by the laws of the State of Florida. The parties agree that any action, mediation or arbitration arising out of this Contract shall take place in Miami -Dade County, Florida. 1.41. HEADINGS AND TERMS - The headings to the various paragraphs of this Contract have been inserted for convenient reference only and shall not in any manner be construed as modifying, amending or affecting in any way the expressed terms and provisions hereof. I.42. HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT (HIPPA) - Any person or entity that performs or assists the City of Miami with a function or activity involving the use or disclosure of "individually identifiable health information (IIHI) and/or Protected Health Information (PHI) shall comply with the Health Insurance Portability and Accountability Act (HIPAA) of 1996 and the City of Miami Privacy Standards. HIPAA mandates for privacy, security and electronic transfer standards, which include but are not limited to: A. Use of information only for performing services required by the contract or as required by law; B. Use of appropriate safeguards to prevent non -permitted disclosures; C. Reporting to the City of Miami of any non -permitted use or disclosure; D. Assurances that any agents and subcontractors agree to the same restrictions and conditions that apply to the Bidder/Proposer and reasonable assurances that IIHI/PHI will be held confidential; E. Making Protected Health Information (PHI) available to the customer; F. Making PHI available to the customer for review and amendment; and incorporating any amendments requested by the customer; G. Making PHI available to the City of Miami for an accounting of disclosures; and H. Making internal practices; books and records related to PHI available to the City of Miami for compliance audits. PHI shall maintain its protected status regardless of the form and method of transmission (paper records, and/or electronic transfer of data). The Bidder/ Proposer must give its customers written notice of its privacy information practices including specifically, a description of the types of uses and disclosures that would be made with protected health information. 1.43..INDEMN1FICATION - The Contractor shall indemnify and save harmless forever the City; and all _, , _ the_City's_agents,.officers and employees from and against all charges or claims resulting from any bodily injury, loss of life, or damage to property from any act; omission or neglect, by itself or its employees; the' Contractor shall .become defendant in every suit brought for any of such causes of action against the City or - the City's officials, agents and employees; the Contractor shall further indemnify City as to all costs, attorneys fees, expenses and liabilities incurred in the defense dfanysuch cl'aime andd'anyresultmg Page 15 of 37 Request for Proposals (RFP) 263248 investigation. 1.44. INFORMATION AND DESCRIPTIVE LITERATURE —Bidders/Proposer must furnish all information requestedin the spacesprovided.in the formal Solicitation. Further, as may be specified elsewhere, each Bidder/Proposer must submit for evaluation, cuts, sketches, descriptive literature, technical specifications, and Material:Safety Data Sheets (MSDS)as required, covering the products offered. Reference to literature submitted with a previous response or on file with the Buyer will not satisfy this provision. 1.45. INSPECTIONS - The City may, at reasonable times during the term hereof, inspect Contractor's facilities and perform such tests, as the City deems reasonably necessary, to determine whether the goods and/or services required to be provided by the Contractor under this Contract conform to the terms and conditions of the Formal Solicitation. Contractor shall make available to the City all reasonable facilities and assistance to facilitate the performance of tests or inspections by City representatives. All tests and inspections shall be subject to, and made in accordance with, the provisions of the City of Miami Ordinance No. 12271 (Section 18-79), as same may be amended or supplemented from time to time. 1.46. INSPECTION OF RESPONSE - Responses received by the City pursuant to a Formal Solicitation will not be made available until such time as the City provides notice of a decision or intended decision or within 10 days after bid closing, whichever is earlier. Bid/Proposal results will be tabulated and may be furnished upon request via fax or e-mail to the Sr. Procurement Specialist issuing the Solicitation. Tabulations also are available on the City's Web Site following recommendation for award. 1.47. INSURANCE - Within ten (10) days after receipt of Notice of Award, the successful Contractor, shall furnish Evidence of Insurance to the Purchasing Department, if applicable. Submitted evidence of coverage shall demonstrate strict compliance to all requirements listed on the Special Conditions entitled "Insurance Requirements". The City shall be listed as an "Additional Insured." Issuance of a. Purchase Order is contingent upon the receipt of proper insurance documents. lithe insurance certificate is received within the specified time frame but not in the manner prescribed in this Solicitation the Contractor shall be verbally notified of such deficiency and shall have an additional five (5) calendar days to submit a corrected certificate to the City. If the Contractor fails to submit the required insurance documents in the manner prescribed in this Solicitation within fifteen (15) calendar days after receipt Notice of Award, the contractor shall be in default of the contractual terms and conditions and shall not be awarded the contract. Under such circumstances, the Bidder/Proposer may be prohibited from submitting future responses to the City. Information regarding any insurance requirements shall be directed to the Risk Administrator, Department of Risk Management, at 444 SW 2nd Avenue, 9th Floor, Miami, Florida 33130, 305-416-1604. The Bidder/Proposer shall be responsible for assuring that the insurance certificates required in conjunction with this Section remain in effect for the duration of the contractual period; including any and all option terms that may be granted to the Bidder/Proposer. 1.48. INVOICES - Invoices shall contain purchase order number and details of goods and/or services delivered (i.e. quantity, unit price, extended price, etc); and in compliance with Chapter 218 of the Florida Statutes (Prompt Payment Act). 1.49. LOCAL PREFERENCE - City Code Section 18-85, states that the City Commission may offer to a responsible and responsive bidder/proposer, who maintains a Local Office, the opportunity of accepting a bid at the low bid amount, if the original bid amount submitted by the local vendor is not more than ten percent (10%) in excess of the lowest other responsible and responsive bidder/proposer. 1.50. MANUFACTURER'S CERTIFICATION - The City reserves the right to request from bidders/proposers a separate Manufacturer's Certification of all statements made in the bid/proposal. Failure to provide such certification may result in the rejection of bid/proposal or termination of contract/agreement, for which the bidder/proposer must bear full liability. 11.51:'MODIFICATIONS OR CHANGES IN PURCHASE ORDERS AND CONTRACTS - No .contract_or understanding tomodify this Formal Solicitation and resultant purchase orders or contracts, if r t = applicable, "shall be binding tipoii the City unless-made'in-writingby the Director of Purchasing`ofthe City r- of•Miami, Florida through the issuance of a change order, addendum, amendment, or supplement to the contract, purchase order or award sheet as appropriate. Page ]6of37 Request for Proposals (RFP) 263248 1.52. NO PARTNERSHIP OR JOINT VENTURE - Nothing contained in this Contract will be deemed or construed to create a partnership or joint venture between the City of Miami and Contractor, or to create any other similar relationship between the parties. 1.53. NONCONFORMANCE TO CONTRACT CONDITIONS - Items may be tested for compliance with specifications underthe'direction of the`Florida Department Of Agriculture and Consumer Services or by other appropriate testing Laboratories as determined by the City. The data derived from any test for compliance with specifications is public record and open to examination thereto in accordance with Chapter 119, Florida Statutes. Items delivered not conforming to specifications may be rejected and returned at Bidder's/Proposer's expense. These non -conforming items not delivered as per delivery dare in the response and/or Purchase Order may result in bidder/proposer being found in default in which event any and all re -procurement costs may be charged against the defaulted contractor. Any violation of these stipulations may also result in the supplier's name being removed from the City of Miami's Supplier's list. 1.54. NONDISCRIMINATION —Bidder/Proposer agrees that it shall not discriminate as to race, sex, color, age, religion, national origin, marital status, or disability in connection with its performance under this formal solicitation. Furthermore, Bidder/Proposer agrees that no otherwise qualified individual shall solely by reason of his/her race, sex, color, age, religion, national•origin, marital status or disability be excluded from the participation in, be denied benefits of, or be subjected to, discrimination under any program or activity. In connection with the conduct of its business, including performance of services and employment of personnel, Bidder/Proposer shall not discriminate against any person on the basis of race, color; religion, disability, age, sex, marital status or national origin. All persons having appropriate qualifications shall be afforded equal opportunity for employment. 1.55. NON-EXCLUSIVE CONTRACT/ PIGGYBACK PROVISION - At such times as may serve its best interest, the City of Miami reserves the right to advertise for, receive, and award additional contracts for these herein goods and/or services, and to make use of other competitively bid (governmental) contracts, agreements, or other similar sources for the purchase of these goods and/or services as may be available. It is hereby agreed and understood that this formal solicitation does not constitute the exclusive rights of the successful bidder(s)/proposer(s) to receive all orders that may be generated by the City in conjunction with this Formal Solicitation. In addition, any and all commodities, equipment, and services required by the City in conjunction with construction projects are solicited under a distinctly different solicitation process and shall not be purchased under the terms, conditions and awards rendered under this solicitation, unless such purchases are determined to be in the best interest of the City. 1.56. OCCUPATIONAL LICENSE - Any person, firm, corporation or joint venture, with a business location in the City of Miami and is submitting a Response under this Formal Solicitation shall meet the City's Occupational License Tax requirements in accordance with Chapter 31.1, Article I of the City of Miami Charter. Others with a location outside the City of Miami shall meet their local Occupational License Tax requirements. A copy of the license must be submitted with the response; however, the City may at its sole option and in its best interest allow the Bidder/Proposer to supply the license to the City during the evaluation period, but prior to award. 1.57. ONE PROPOSAL - Only one (I) Response from an individual, firm, partnership, corporation or joint venture will be considered in response to this Formal Solicitation. When submitting an alternate response, please refer to the herein condition for "Alternate Responses May Be Considered". 1.58. OWNERSHIP OF DOCUMENTS - It is understood by and between the parties that any documents, records, files, or any other matter whatsoever which is given by the City to the successful Bidder/Proposer pursuantto this formal solicitation shall at all times remain the property of the City and shall not be used by • -. • the Bidder/Proposer.for any other purposes whatsoever without the written consent of the City.' .1.59: PARTIAL INVALIDITY - If any provision of this Contract or the application thereof to any person or. circumstance shall to.any extent be held invalid, then the remainder of this Contract or the application of such provision to persons or circumstances other than those as to which it is held invalid shall not be .. affected thereby, and each provision of this Contract shall be valid and enforced to the fullest extent permitted by law. ::.._...:....: .........::.:: Page17.of 3.7=_ Request for Proposals (RFP) 263248 1.60. PERFORMANCE/PAYMENT BOND —A Contractor may be required to famish a Perfomiance/Payment Bond as part of the requirements of this Contract, in an amount equal to one hundred percent (100%) of ibe contract price. 1.61. PREPARATION OF RESPONSES (HARDCOPY FORMAT)—Bidders/Proposers are expected to examine the specifications,'required;delivery, drawings, and all special and general conditions. All bid/proposed amounts, if required, shall be either typewritten or entered into the space provided with ink. Failure to do so will be at the Bidder's/Proposer's risk. A. Each Bidder/Proposer shall furnish the information required in the Formal Solicitation. The Bidder/Proposer shall sign the Response and print in ink or type the name of the Bidder/Proposer, address, and telephone number on the face page and on each continuation sheet thereof on which he/she makes an entry, as required. B. If so required, the unit price for each unit offered shall be shown, and such price shall include packaging, handling and shipping, and F.O.B. Miami delivery inside City premises unless otherwise specified. Bidder/Proposer shall include in the response all taxes, insurance, social security, workmen's compensation, and any other benefits normally paid by the Bidder/Proposer to its employees. If applicable, a unit price shall be entered in the "Unit Price" column for each item. Based upon estimated quantity, an extended price shall be entered in the "Extended Price" column for each item offered. In case of a discrepancy between the unit price and extended price, the unit price will be presumed correct. C. The Bidder/Proposer must state a definite time, if required, in calendar days for delivery of goods and/or services. D. The Bidder/Proposer should retain a copy of all response documents for future reference. E. All responses, as described, must be fully completed and typed or printed in ink and must be signed in ink with the firm's name and by an officer or employee having authority to bind the company or firm by his/her signature. Bids/Proposals having any erasures or corrections must be initialed in ink by person signing the response or the response may be rejected. F. Responses are to remain valid for at least 180 days. Upon award of a contract, the content of the Successful Bidder's/Proposer's response may be included as part of the contract, at the City's discretion. G. The City of Miami's Response Forms shall be used when Bidder/Proposer is submitting its response in hardcopy format. Use of any other forms will result in the rejection of the response. IF SUBMITTING HARDCOPY FORMAT, THE ORIGINAL AND THREE (3) COPIES OF THESE SETS OF FORMS, UNLESS OTHERWISE SPECIFIED, AND ANY REQUIRED ATTACHMENTS MUST BE RETURNED TO THE CITY OR YOUR RESPONSE MAY BE DEEMED NON -RESPONSIVE. 1.62. PRICE ADJUSTMENTS — Any price decrease effectuated during the contract period either by reason of market change or on the part of the contractor to other customers shall be passed on to the City of Miami. 1.63. PRODUCT SUBSTITUTES - In the event a particular awarded and approved manufacturer's product becomes unavailable during the term of the Contract, the Contractor awarded that item may arrange with the City's authorized representative(s) to supply a substitute product at the awarded price or lower, provided that a sample is approved in advance of delivery and that the new product meets or exceeds all quality requirements. 1.64. CONFLICT OF INTEREST, AND UNETHICAL BUSINESS PRACTICE PROHIBITIONS - Contractor represents and warrants to the City that it has not employed or retained any person or company employed by the City to solicit or secure this Contract and that it has not offered to pay, paid, or agreed to pay any person any fee, commission, percentage, brokerage fee, or gift of any kind contingent upon or in connection with, the award of this Contract. . 1.65. PROMPT PAYMENT-Bidders/Proposers may offer a cash discount for prompt payment; however, discounts shall not be considered in determining the lowest net cost for response evaluation purposes. Bidders/Proposers are required to provide their prompt payment terms in the space provided on the Formal Solicitation. If no prompt payment discount is being offered, the Bidder/Proposer must enter zero (0) for the percentage discount to indicate no discount. If the Bidder/Proposer fails to enter a percentage, it is - understood and agreed that the terns shall be 2% 20 days, effective after receipt of invoice or final Page 18.of37 Request for Proposals (RFP) 263248 acceptance by the City, whichever is later. When the City is entitled to a cash discount, theperiod of computation will commence on the date of delivery, or receipt of a correctly completed invoice, whichever is later. If an adjustment in payment is necessary due to damage, the cash discount period shall commence on the date final approval for payment is authorized. If a discount is part of the contract,'but'the'invoice does not reflect the existence of a cash discount, the City is entitled to a cash discount with the period commencing on the date it is determined by the City that a cash discount applies. Price discounts off the original prices quoted on the Price Sheet will be accepted from successful bidders/proposers during the term of the contract. 1.66. PROPERTY - Property owned by the City of Miami is the responsibility of the City of Miami. Such property furnished to a Contractor for repair, modification, study, etc., shall remain the property of the City of Miami. Damages to such property occurring while in the possession of the Contractor shall be the responsibility of the Contractor. Damages occurring to such property while in route to the City of Miami shall be the responsibility of the Contractor. In the event that such property is destroyed or declared a total Loss, the Contractor shall be responsible for replacement value of the property at the current market value, less depreciation of the property, if any. 1.67. PROVISIONS BINDING - Except as otherwise expressly provided in the resulting Contract, all covenants, conditions and provisions of the resulting Contract shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, legal representatives, successors and assigns. 1.68. PUBLIC ENTITY CRIMES - A person or affiliate who has been placed on the convicted vendor list following a conviction for a public entity crime may not submit a response on a contract to provide any goods or services to a public entity, may not submit a response on a contract with a public entity for the construction or repair of a public building or public work, may not submit responses on leases of real property to a public entity, may not be awarded or perforrn work as a contractor, supplier, subcontractor, or consultant under a contract with any public entity, and may not transact business with any public entity in excess of the threshold amount provided in Section 287.017, for CATEGORY TWO for a period of 36 months from the date of being placed on the convicted vendor. list. 1.69. PUBLIC RECORDS - Contractor understands that the public shall have access, at all reasonable times, to all documents and information pertaining to City contracts, subject to the provisions of Chapter 119, Florida Statutes, and City of Miami Code, Section 18, Article III, and agrees to allow access by the City and the public to all documents subject to disclosure under applicable law. Contractor's failure or refusal to comply with the provision of this section shall result in the immediate cancellation of this Contract by the City. 1.70. QUALITY OF GOODS, MATERIALS, SUPPLIES, PRODUCTS, AND EQUIPMENT - All materials used in the manufacturing or construction of supplies, materials, or equipment covered by this solicitation shall be new. The items bid/proposed must be of the latest make or model, of the best quality, and of the highest grade of workmanship; unless as otherwise specified in this Solicitation. 1.71. QUALITY OF W'ORK/SERVICES - The work/services performed must be of the highest quality and workmanship. Materials furnished to complete the service shall be new and of the highest quality except as otherwise specified in this Solicitation. 1.72. REMEDIES PRIOR TO AWARD (Sec. 18-106) - If prior to Contract award it is determined that a formal solicitation or proposed award is in violation of law, then the solicitation or proposed award shall be cancelled by the City Conunission, the City Manager or the Chief Procurement Officer, as may be applicable, or revised to comply with the law. 1.73. RESOLUTION OF CONTRACT DISPUTES (Sec. 18-105) (a) Authority to resolve Contract disputes. The City Manager, after obtaining the approval of the city attorney, shall'have the authority to resolve controversies between the Contractual Party and the city which - -arise under, or -by virtue of,..a Contract between them; provided that; in cases involvingan amount:greater.. • -thanl25,000, the City Commission must approve the City Manager's decision. Such authority extends, -_,-without limitation, to controversies based upon breach of Contract, mistake, misrepresentation or lack of complete performance, and shall be invoked by a Contractual Party by submission of a protest to the City Manager. Page l 9 of 37 Request for Proposals (RFP) 263248 (b) Contract dispute decisions. If a dispute is not resolved by mutual consent, the City Manager shall promptly render a written report stating the reasons for the action taken by the City Commission or the City Manager'which.shall.be final.and conclusive. A copy of the decision shall be immediately provided to the protesting party, along with a notice of such party's right to seek judicial relief, provided that the protesting party shall not be entitled to such judicial relief without first having followed the procedure, set forth in this section. 1.74. RESOLUTION OF PROTESTED SOLICITATIONS AND AWARDS (Sec. 18-104) (a) Right to protest. The following procedures shall be used for resolution of protested solicitations and awards except for purchases of goods, supplies, equipment, and services, the estimated cost of which does not exceed $25,000. Protests thereon shall be governed by the Administrative Policies and Procedures of Purchasing. I..Protest of Solicitation. i. Any prospective proposer who perceives itself aggrieved in connection with the solicitation of a Contract may protest to the Chief Procurement Officer. A written notice of intent to file a protest shall be filed with the Chief Procurement Officer within three days after the Request for Proposals, Request for Qualifications or Request for Letters of Interest is published in a newspaper of general circulation. A notice of intent to file a protest is considered filed when received by the Chief Procurement Officer; or ii. Any prospective bidder who intends to contest the Solicitation Specifications or a solicitation may protest to the Chief Procurement Officer. A written notice of intent to file a protest shall be filed with the Chief Procurement Officer within three days after the solicitation is published in a newspaper of general circulation. A notice of intent to file a protest is considered filed when received by the Chief Procurement Officer. 2. Protest of Award. i. A written notice of intent to file a protest shall be filed with the Chief Procurement Officer within two days after receipt by the proposer of the notice of the City Manager's recommendation for award of Contract, which will be posted on the City of Miami Purchasing Department website, in the Supplier Comer, Current Solicitations and Notice of Recommendation of Award Section. The notice of the City Manager's recommendation can be found by selecting the details of the solicitation and is listed as Recommendation of Award Posting Date and Recommendation of Award To fields. If "various' is indicated in the Recommendation of Award To field, the Bidder/Proposer must contact the buyer for that solicitation to obtain the suppliers name. It shall be the responsibility of the Bidder/Proposer to check this section of the website daily after responses are submitted to receive the notice; or ii. Any actual Responsive and Responsible Bidder whose Bid is lower than that of the recommended bidder may protest to the Chief Procurement Officer. A written notice of intent to file a protest shall be filed with the Chief Procurement Officer within two days after receipt by the bidder of the notice of the city's determination of non responsiveness or non responsibility. The receipt by bidder of such notice shall be confirmed by the city by facsimile or electronic mail or U.S. mail, return receipt requested. A notice of intent to file a protest. is considered filed when received by the Chief Procurement Officer. iii. A written protest based on any of the foregoing must be submitted to the Chief Procurement Officer within five (5) days after the date the notice of protest was filed. A written protest is considered filed when received by the Chief Procurement Officer. The written protest may not challenge the relative weight of the evaluation criteria or the formula for assigning points in making an award determination. The written protest shall state with particularity the specific facts and law upon which the protest of the solicitation or the award is based, and shall include all pertinent documents and evidence and shall be accompanied by the required Filing Fee as provided in subsectiod (f). This shall fomn the basis for review of the written protest and no facts, grounds; documentation or evidence not contained in the protester's :.submission.to the Chief Procurement Officer at the time of filing the protest shall be permitted in the consideration of the written protest. .h1No time;will be added to the above limits for service by mail. In computing any period of time prescribed or allowed by this section, the day of the act, event or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included unless it is a • Saturday;'Stuiday:or.legal holiday in .which event the period shall run until the end of the next day which is Page 20 of 37 Request for Proposals (RFP) 263248 neither a Saturday, Sunday or legal holiday. Intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation of the time for filing. (b) Authority to resolve protests. The Chief Procurement Officer shall have the authority, subject to the approval of the City Manager and the city attorney, to settle and resolve any written protest. The Chief Procurement Officer shall obtain the requisite approvals and communicate said decision to the protesting party and shall submit said decision to the City Commission within 30 days after he/she receives the protest. In cases involving more than S25,000, the decision of the Chief Procurement Officer shall be submitted for approval or disapproval thereof to the City Commission after a favorable recommendation by the city attorney and the City Manager. (c) Compliance with filing requirements. Failure of a party to timely file either the notice of intent to file a protest or the written protest, together with the required Filing Fee as provided in subsection (f), with the Chief Procurement Officer within the time provided in subsection (a), above, shall constitute a forfeiture of such party's right to file a protest pursuant to this section. The protesting party shall not be entitled to seek judicial relief without first having followed the procedure set forth in this section (d) Stay of Procurements during protests. Upon receipt of a written protest filed pursuant to the requirements of this section, the city shall not proceed further with the solicitation or with the award of the Contract until the protest is resolved by the Chief Procurement Officer or the City Commission as provided in subsection (b) above, unless the City Manager makes a written determination that the solicitation process or the Contract award must be continued without delay in order to avoid an immediate and serious danger to the public health, safety or welfare. (e) Costs. All costs accruing from a protest shall be assumed by the protestor. (f) Filing Fee. The written protest must be accompanied by a filing fee in the fonn of a money order or cashier's check payable to the city in an amount equal to one percent of the amount of the Bid or proposed Contract, or S5000.00, whichever is less, which filing fee shall guarantee the payment of all costs which may be adjudged against the protestor in any administrative or court proceeding. If a protest is upheld by the Chief Procurement Officer and/or the City Commission, as applicable, the filing fee shall be refunded to the protestor less any costs assessed under subsection (e) above. If the protest is denied, the filing fee shall be forfeited to the city in lieu of payment of costs for the administrative proceedings as prescribed by subsection (e) above. 1.75. SAMPLES - Samples of items, when required, must be submitted within the time specified at no . expense to the City. If not destroyed by testing, bidder(s)/proposer(s) will be notified to remove samples, at their expense, within 30 days after notification. Failure to remove the samples will result in the samples becoming the property of the City. 1.76. SELLING, TRANSFERRING OR ASSIGNING RESPONSIBILITIES - Contractor shall not sell, assign, transfer or subcontract at any. time during the term of the Contract, or any part of its operations, or assign any portion of the performance required by this contract, except under and by virtue of written permission granted by the City through the proper officials, which may be withheld or conditioned, in the City's sole discretion. 1.77. SERVICE AND WARRANTY —When specified, the bidder/proposer shall define all warranty, service and replacements that will be provided. Bidders/Proposer must explain on the Response to what extent warranty and service facilities are available. A copy of the manufacturer's warranty, if applicable, should be submitted with your response. 1.78. SILENCE OF SPECIFICATIONS - The apparent silence of these specifications and any supplemental specification as to any detail or the omission from it of detailed description concerning any point shall be regarded as meaning that only the best commercial practices are to prevail and that only materials of first quality -and correct type, size and design are to be used. All workmanship and services is to be first quality. All interpretations of these specifications shall be made upon the basis of this statement. If your firm has a current contract with the State -of Florida, Department of General Services, to supply the items on 'this -solicitation"; the bidder/proposer shall quote not more than the contract price; failure to comply with this request will result in disqualification of bid/proposal. 1.79: SUBMISSION AND RECEIPT OF RESPONSES - Responses shall be submitted electronically via Page 21 of 37 Request for Proposals (RFP) 263248 the Oracle System or responses may be submitted in hardcopy format to the City Clerk, City Hall, 3500 Pan American Drive, Miami, Florida 33133-5504, at or before, the specified closing date and time as designated in the IFB, RFP, RFQ,.or.RFLI. NO..EXC'F:PTIONS. Bidders/Proposers are welcome to attend the solicitation closing; however, no award will be made at that time. A. Hardcopy responses shall be•enclosed in a sealed'envelope,:box package. The face of the envelope, box or package must show the hour and date specified for receipt of responses, the solicitation number and title, and the name and return address of the Bidder/Proposer. Hardcopy responses not submitted on the requisite Response Forms may be rejected. Hardcopy responses received at any other location than the specified shall be deemed non -responsive. Directions to City Hall: FROM THE NORTH: 1-95 SOUTH UNTIL IT TURNS INTO US 1. US1 SOUTH TO 27TH AVE., TURN LEFT, PROCEED SOUTH TO SO. BAYSHORE DR. (3RD TRAFFIC LIGHT), TURN LEFT, 1 BLOCK TURN RIGHT ON PAN AMERICAN DR. CITY HALL IS AT THE END OF PAN AMERICAN DR. PARKING IS ON RIGHT. FROM THE SOUTH: US 1 NORTH TO 27TH AVENUE, TURN RIGHT, PROCEED SOUTH TO SO. BAYSHORE DR. (3RD TRAFFIC LIGHT), TURN LEFT,'1 BLOCK TURN RIGHT ON PAN AMERICAN DR. CITY HALL IS AT THE END OF PAN AMERICAN DR. PARKING 1S ON RIGHT. B. Facsimile responses will not be considered. C. Failure to follow these procedures is cause for rejection of bid/proposal. D. The responsibility for obtaining and submitting a response on or before the close date is solely and strictly the responsibility of Bidder/Proposer. The City of Miami is not responsible for delays caused by the United States mail delivery or caused by any other occurrence. Responses received after the solicitation closing date and time will be returned unopened, and will not be considered for award. E. Late responses will be rejected. F. All responses are subject to the conditions specified herein. Those which do not comply with these conditions are subject to rejection. G. Modification of responses already submitted will be considered only if received at the City before the time and date set for closing of solicitation responses. All modifications must be submitted via the Oracle System or in writing. Once a solicitation closes (closed date and/or time expires), the City will not consider any subsequent submission which alters the responses. H. If hardcopy responses are submitted at the same time for different solicitations, each response must be placed in a separate envelope, box, or package and each envelope, box or package must contain the information previously stated in 1.82.A. 1.80. TAXES - The City of Miami is exempt from any taxes imposed by the State and/or Federal Government. Exemption certificates will be provided upon request. Notwithstanding, Bidders/Proposers should be aware of the fact that all materials and supplies which are purchased by the Bidder/Proposer for the completion of the contract is subject to the Florida State Sales Tax in accordance with Section.212.08, Florida Statutes, as amended and all amendments thereto and shall be paid solely by the Bidder/Proposer. 1.81. TERMINATION —The City Manager on behalf of the City of Miami reserves the right to terminate this contract by written notice to the contractor effective the date specified in the notice should any of the following apply: A. The contractor is determined by the City to be in breach of any of the terms and conditions of the contract. B. The City has determined that such termination will be in the best interest of the City to terminate the contract for its own convenience; C. Funds are not available to cover the cost of the goods and/or services. The City's obligation is contingent upon the availability of appropriate funds. 1.82. TERMS OF PAYMENT - Payment will be made by the City after the goods and/or services awarded to a Bidder/Proposer have been received, inspected, and found to comply with award Page 22of37 Request for Proposals (RFP) 263248 specifications, free of damage or defect, and properly invoiced. No advance payments of any kind will be made by the City of Miami. Payment shall be made after delivery, within 45 days of receipt of an invoice and authorized inspection and acceptance of the goods/services and pursuant to Section 218.74, Florida Statutes and other applicable law. 1.83. TIMELY DELIVERY - Time will be of the essence for any orders placed as a result of this solicitation. The City reserves the right to cancel such orders, or any part thereof, without obligation, if delivery is not made within the time(s) specified on their Response. Deliveries are to be made during regular City business hours unless otherwise specified in the Special Conditions. 1.84. TITLE - Title to the goods or equipment shall not pass to the City until after the City has accepted the goods/equipment or used the goods, whichever comes first. 1.85-TRADE SECRETS EXECUTION TO PUBLIC RECORDS DISCLOSURE- All Responses submitted to the City are subject to public disclosure pursuant to Chapter 119, Florida Statutes. An exception may be made for "trade secrets." If the Response contains information that constitutes a "trade secret", all material that qualifies for exemption from Chapter 119 must be submitted in a separate envelope, clearly identified as "TRADE SECRETS EXCEPTION," with your firm's name and the Solicitation number and title marked on the outside. Please be aware that the designation of an item as a trade secret by you may be challenged in court by any person. By your designation of material in your Response as a "trade secret" you agree to indemnify and hold harmless the City for any award to a plaintiff for damages, costs or attomey's fees and for costs and attorney's fees incurred by the City by reason of any legal action challenging your claim. 1.86. UNAUTHORIZED WORK OR DELIVERY OF GOODS- Neither the qualified Bidder(s)/Proposer(s) nor any of his/her employees shall perform any work or deliver any goods unless a change order or purchase order is issued and received by the Contractor. The qualified Bidder(s)/Proposer(s) shall not be paid for any work performed or goods delivered outside the scope of the contract or any work performed by an employee not otherwise previously authorized. 1.87. USE OF NAME - The City is not engaged in research for advertising, sales promotion, or other publicity purposes. No advertising, sales promotion or other publicity materials containing information obtained from this Solicitation are to be mentioned, or imply the name of the City, without prior express written permission of the City Manager or the City Commission. 1.88. VARIATIONS OF SPECIFICATIONS - For purposes of solicitation evaluation, bidders/proposers must indicate any variances from the solicitation specifications and/or conditions, no matter how slight. If variations are not stated on their Response, it will be assumed that the product fully complies with the City's specifications. Page 23 of 37 Request for Proposals (RFP) 263248 I"I 2. Special Conditions 2.1. PURPOSE The purpose ofthis Solicitation.is to establish a contract, for. Concessions/Food/Merchandise Plan(s) and Operation(s) for City of Miami's Bayfront Park, as specified herein, from a source(s) of supply that will give prompt and efficient service fully compliant with the terms, conditions and stipulations of the solicitation. 2.2. DEADLINE FOR RECEIPT OF REQUEST FOR ADDITIONAL INFORMATION/CLAR.IFICATION Any questions or clarifications concerning this solicitation shall be submitted by email or facsimile to the Purchasing Department, Ann: Terry Byrnes, CPPB; fax: (305) 400-5230 or email: tbyrnes@ci.miami.fl_us. The solicitation title and number shall be referenced on all correspondence. All questions must be received no later than Tuesday, April 19, 2011 at 3:OOPM. All responses to questions will be sent to all prospective bidders/proposers in the fonn on an addendum. NO QUESTIONS WILL BE RECEIVED VERBALLY OR AFTER SAID DEADLINE. 2.3. TERM OF CONTRACT The Contract shall commence upon the date of notice of award and shall be effective for five (5) years with the option to extend for two (2) additional five (5) years periods, subject to the availability of funds for succeeding fiscal years. Continuation of the contract beyond the initial period is a City/Bayfront Park Management Trust prerogative; not a Bidder's right. This prerogative will be exercised only when such continuation is clearly in the best interest of the City/Bayfront Park Management Trust. 2.4. CITY OF MIAMI/BAYFRON'T PARK MANAGEMENT TRUST For purposes of this forrnal solicitation, every section, whether in the General Terms and Conditions, Special Terns and Conditions or Specifications/Scope of Work, referring to the "City or City of Miami" shall be interpreted to also include Bayfront Park Management Trust ("Trust"). 2.5. CONDITIONS FOR RENEWAL Each renewal of this contract is subject to the following: (1) Continued satisfactory performance compliance with the Specifications, General and Special Terms and Conditions established herein, and (2) Availability of funds. 2.6. NON -APPROPRIATION OF FUNDS In the event no funds or insufficient funds are appropriated and budgeted or are otherwise unavailable in any fiscal period for payments due under this contract, then the City/Bayfront Park Management Trust, upon written notice to Successful Proposer or its assignee of such occurrence, shall have the unqualified right to terminate the contract without any penalty or expense to the City/Bayfront Park Management - -Trust. No guarantee, warranty or representation is made that any particular project(s) will be awarded to any firrn(s). 2.7. PROPOSERS MINIMUM QUALIFICATIONS iEach.firm interestedin''responding to this Request for Proposals (RFP) must provide the information on the Page 24 of 37 Request for Proposals (RFP) 263248 firm's qualifications and experience, qualifications of the project team, Business Manager's experience, and previous similar projects. Additionally, Proposer(s) must: (I) be an established firm for a minimum of one (1) year, and Proposer, or its Owner(s) and/or Principal(s), musvhave a minimum ofthree`(3) years related experience; (2) the individual proposed as the Business Manager/Operator must have a minimum of three (3) years experience in scope; (3) have no member, officer, or stockholder that is in arrears or in default of any debt or contract involving the City/Bayfront Park Management Trust, is a defaulter surety otherwise, upon any obligation to the City/Bayfront Park Management Trust, and/or has failed to perform faithfully on any previous contract with the City/Bayfront Park Management Trust; (4) have no record of pending lawsuits or criminal activities and (5) have never been declared bankrupt. 2.8. VOLUNTARY PRE -PROPOSAL CONFERENCE AND SITE VISIT Potential Proposers are requested to attend the voluntary pre -proposal conference and site visit. This Pre -Proposal Conference will occur on Tuesday, April 12, 2011 at 10:00 AM at the Bayfront Park Management Trust located at 301 N. Biscayne Blvd., Miami, Florida; discussion and inspection/walk-thru of the Bayfront Park potential Concession/Food/Merchandise Locations and a discussion of the requirements will occur at that time. 2.9. IRREVOCABLE LETTER OF CREDIT / SECURITY The Proposer(s) who is/are selected by the City/Trust as a result of this Request For Proposals (RFP) process, Successful Proposer shall submit to the City/Trust, together with the Contract to be executed ("Contract"), an Irrevocable Letter of Credit ("Letter of Credit") in the amount not less than Five Thousand Dollars (S5.000.00), with the exact amount to be negotiated as part of the Contract. The Letter of Credit is to assure payment to the City/Trust of all fees that may become due by Successful Proposer to the City/Trust under the terms and conditions of the Contract. The Letter of Credit shall be subject to approval by the City Attorney and Risk Management, and shall be in effect and in -evocable during the entire term of the Contract. Proposer understands, and the irrevocable Letter of Credit shall provide, that in the event of a default by the Successful Proposer under the Contract, the City/Trust shall have the right to draw upon the Letter of Credit in the amount determined by the City/Trust to be necessary to cure the default. In such event, Successful Proposer must immediately take whatever action is required to replenish the Letter of Credit to its original amount or have a new irrevocable Letter of Credit issued. Failure to comply with this requirement within five (5) days after City draws upon the Letter of Credit shall authorize the City/Trust to immediately terminate the Contract with the Successful Proposer. For the purposes of this RFP and as part of its response, Proposer shall submit a letter from its bank, attesting to Proposer's (financial resources) capability to proffer credit/security should a contract be awarded. 2.10. TRUST/CITY ACCESS TO FACILITY The Trust/City and its authorized representatives shall have, at all times, access to the areas assigned to the Successful Proposer(s)/Concessionaire(s). Trust/City will maintain a complete set of keys to the concession facility. Successful.Proposer(s)/Concessionaire(s) shall immediately provide keys to the Trust/City for any • new equipment or key changes. Key changes must be approved in advance by the Contract Administrator. 2.11. BUSINESS OBJECTIVE _:Mildred and Claude-Pepper;•Bayfront Park is a 32-acre site, located at 301 N. Biscayne Boulevard, Miami, Paee 25 of 37 Request for Proposals (RFP) 263248 Florida 33132, in the Downtown Miami Harbor District - adjacent to the Central Business District. The Bayfront Park Management Trust ("Trust") and the City of Miami ("City") are seeking competitive proposals for Concessions/Food/Merchandise Plan•and Operations for City of Miami's Bayfront Park. The Trust has identified seven potential Sites (see Attachment A, in the Header/Attachments • Section). Proposer(s) :rnay:propose uses for aii locations; individual location, or any combination thereof, or alternative locations; however, not limiting the Trust's ability to add or delete business opportunities as needed. 2.12. SAFETY MEASURES Successful Proposer(s) shall take all necessary precautions for the safety of employees, and shall erect and properly maintain at all times all necessary safeguards for the protection of the employees and the public. Danger signs warning against hazards created by its operation and work in progress must be posted. 2.13. EMPLOYEES ARE RESPONSIBILITY OF SUCCESSFUL PROPOSER(S) All employees of the Successful Proposer(s) shall be considered to be, at all times, the sole employees of the Successful Proposer(s) under its sole direction and not an employee or agent of the Trust/City. The Successful Proposer(s) shall supply competent and physically capable employees. The Trust/City may require the Successful Proposer(s) to remove an employee the Trust/City deems careless, incompetent, insubordinate or otherwise objectionable and whose continued employment under this contract is not in the best interest of the Trust/City. Each employee shall have and wear proper identification. 2.14. MANAGEMENT REPORTS The Successful Proposer(s) shall maintain accurate and complete financial records in a manner approved by the Trust. These records shall be subject to inspection by the Trust and/or the City. The Successful Proposer(s) will be required to submit a monthly statement of gross revenues as defined in the proposal. In addition, each year an annual financial statement of gross revenues shall be submitted to the Trust/City, which statement shall be accompanied by an opinion of a certified or licensed public accountant. Records shall be maintained for at least five (5) years following the last year of the term of the Contract. 2.15. PERFORMANCE REVIEW/INSPECTIONS The Contract Administrator or designee will conduct Performance Reviews and Inspections with the Successful Proposer(s)/Concessionaire's Manager at least once yearly to review all aspects of Successful Proposers)/Concessionaire's performance and to examine the Successful Proposer(s)/Concessionaire's maintenance of all areas. The Successful Proposer(s)/Concessionaire shall present to Trust/City operational issues, improvements and financial results and disclose any damages or repairs performed on the Premises. 2.16. CONTRACT EXECUTION The Successful Proposer(s) evaluated and ranked in accordance with the requirements of this Solicitation, shall be awarded an opportunity to negotiate a contract ("Contract") with the City/Bayfront Park Management Trust. The City/Bayfront Park Management Trust reserves the right to execute or not . -execute;-•as applicable,•a Contract with the Successful Proposer(s)-that is/are determined to be inost • advantageous and in the City/Bayfront Park Management Trust's best interest. Such Contract will be furnished by the City/Bayfront Park Management Trust and will contain certain terms as are in the • City/Bayfront Park Management Trust's best interests, and will be subject to approval as to legal form by the City Attorney. 2.I7.-FAILURE TO PERFORM Page 26 of 37 Request for Proposals (RFP) 263248 Should it not be possible to reach the Successful Bidder or authorized representative and/or should remedial action not be taken within 48 hours of any failure to perform according to specifications, the City/Bayfront. Park ManagementTrust reserves .the.right to.declare,Successful Bidder in default of the contract or make appropriate reductions in the contract payment. 2.I8. CONTRACT ADMINISTRATOR Upon award, Successful Proposer(s) shall report and work directly with Tim Schmand, Executive Director, who shall be designated as the Contract Administrator. 2.19. INSURANCE REQUIREMENTS INSURANCE REQUIREMENTS: CONCESSION STANDS AT BAYFRONT PARK I. Commercial General Liability A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $1,000,000 General Aggregate Limit $ 2,000,000 Products/Completed Operations $ 1,000,000 Personal and Advertising Injury $1 ,000,000 Damage to Rented Premises $ 100,000 B. Endorsements Required City of Miami included as an additional insured Bayfront Park Management Trust included as an additional insured Contingent Liability Premises & Operations Liability II. Business Automobile Liability A: Limits of Liability Bodily Injury and Property Damage Liability Combined Singie Limit Any Auto/Owned Autos/Scheduled Including Hired, Borrowed or Non -Owned Autos Any One Accident $ 300,000 B. Endorsements Required City of Miami included as an additional insured Bayfront Park Management Trust included as an additional insured 1I1. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of subrogation Page 27 of 37 Request for Proposals (RFP) 263248 Employer's Liability A. Limits of Liability $100,000 for bodily injury caused by an accident, each accident. $100,000 for bodily injury caused by disease, each employee $500,000 for bodily injury caused by disease, policy limit IV. Liquor Liability (If Applicable) Each Occu rence/Policy Aggregate $1,000,000 The above policies shall provide the City of Miami with written notice of cancellation or material change from the insurer not less than (30) days prior to any such cancellation or material change. Companies authorized to do business in the State of Florida, with the following qualifications, shall issue all insurance policies required above: The company must be rated no less than "A" as to management, and no less than "Class V" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies and /or certificates of insurance are subject to review and verification by Risk Management prior to insurance approval. 2.20. SUBCONTRACTORS OF WORK SHALL BE IDENTIFIED As part of its Proposal, the Proposer(s) is/are required to identify any and all Subcontractors that will be used in the performance of the proposed contract, their capabilities, experience and the portion of the work to be done by the Subcontractor. Failure to identify any and all Subcontractors in the Proposal may render the Proposal non -responsive. The Successful Proposer(s) shall not, at any time during the tenure of the contract, subcontract any part of the operations or assign any portion or part of the contract; to Subcontractor(s) not originally mentioned in the Proposal, except under and by virtue of pennission granted by the CityBayfront Park Management Trust through the proper officials. Nothing contained in these specifications shall be construed as establishing any contractual relationship between any Subcontractor and the City/Bayfront Park Management Trust. The Proposer(s) shall submit all Sub -Contractor reference information including contacts, address, phone, fax, email, copies of licenses required by the State of Florida and/or Miami -Dade County. 2.21. CAPITAL IMPROVEMENTS AND MAINTENANCE The Trust/City shall provide in an "as is" condition the Site(s) to Successful Proposer(s). The Successful Proposer(s) shall be responsible for the capital improvements of the Site(s) and full maintenance (equipment, grease traps, etc.) in a satisfactory manner as determined by the Contract Administrator. The Successful Proposer(s) shall be required to design, provide, and install all furnishings, fixtures, trade fixtures, equipment, finishes, and signage necessary to manage and operate the site. 2.22. USE OF PREMISES The Successful Proposer(s) shall confine its equipment, apparatus, the storage of materials, and the operation of its workmen to the limits indicated by law, ordinances, permits, or direction of the project manager, and shall not unreasonably encumber the premises with its own materials and equipment. The _-'Successful'Proposer(s) shall take all measures necessary to protect its own materials and equipment. Page 28 of 37 Request for Proposals (RFP) 263248 2.23. LICENSES AND PERMITS The Successful°Proposer(s),shali.abide-by-all.ordinancesand laws pertaining to its -management and operation of the Site(s) and shall secure all Licenses and permits necessary for the management and operation of the location. 2.24. DAMAGES TO PUBLIC/PRIVATE PROPERTY The Successful Proposer(s) shall carry out the work with such care and methods as not to result in damage to public or private property adjacent to the work. Should any public or private property be damaged or destroyed, the Successful Proposer(s) shall assume the expense and repair or make restoration as is practical and acceptable to the CityBayfront Park Management Trust and/or owners of destroyed or damaged property promptly within a reasonable length of time (not to exceed one month from date damage was done). 2.25. PUBLIC CONVENIENCE AND SAFETY The Successful Proposer(s) shall conduct any and all work so as to interfere as minimally as possible with .private business or public travel. Successful Proposer(s) shall, at its own expense, whenever necessary or required, maintain barricades, maintain lights, and take such other precautions as may be necessary to protect life and property, and Successful Proposer(s) shall be liable for all damages occasioned in any way by its actions or neglect or that of its agents or employees. The Successful Proposer(s) shall meet the following noise abatement performance standards for all construction and equipment: - Between the hours of 7:00 A.M. and 6:00 P.M. noise levels shall not exceed 80 dBA at the nearest residential or commercial property line. - Operation of equipment should be avoided between the hours of 6:00 P.M. and 7:00 A.M., but if required, the noise level shall not exceed 65 dBA. 2.26. TERMINATION A. FOR DEFAULT If Successful Proposer(s) defaults in its performance under this Contract and does not cure the default within 30 days after written notice of default, the Executive Director of Bayfront Park Management Trust or the City Manager may terminate this Contract, in whole or in part, upon written notice without penalty to the the Trust or the City of Miami. In such event the Successful Proposer(s) shall be liable for damages including the excess cost of procuring similar supplies or services: provided that if, (I) it is determined for any reason that the Successful Proposer(s) was/were not in default or (2) the Successful Proposer's failure to perform is without its control, fault or negligence, or for that of its Sub -contractor's, the termination will be deemed to be a termination for convenience by the Trust and the City of Miami, B. FOR CONVENIENCE The Executive Director of Bayfront Park Management Trust or the City Manager may terminate- this Contract, in whole or in part, upon 30 days prior written notice when in the best interest of the Trust or the City of Miami. If this Contract is for supplies, products, equipment, or software, and so terminated for convenience by the Trust or the City of Miami, the Successful Proposer(s) will be compensated in .accordance with an agreed upon adjustment of cost. To the extent that this Contract is for services and so terminated, the Trust and the City of Miami shall be liable only -for payment in accordance with the payment provisions of the Contract for those services rendered prior to termination. 2.27. ADDITIONAL TERMS AND CONDITIONS -No additional terms and conditions included with the Proposal response shall be evaluated or considered, and any and all suchadditional terms and conditions shall have no force or effect and are inapplicable to this Solicitation. If submitted either purposely; through intent or design, or inadvertently, appearing Page 29 of 37 Request for Proposals (RFP) 263248 separately in transmittal letters, specifications, literature, price lists or warranties, it is understood and agreed that the General and Special Terms and Conditions in this Solicitation are the only conditions applicable and.thAtthe Proposer.'s.authori2ed.signature.affixed to the Proposer's acknowledgment form attests to the same. 2.28. INTERNAL CONTROLS Successful Proposer shall provide the Trust/City with a letter from an independent Certified Public Accountant (CPA) certifying that the Successful Proposer's internal controls are adequate to safeguard its assets and properly reconcile accounting transactions. The Trust/City reserves the right to audit the records of the Successful Proposer at any time during the performance of this Agreement, and for a period of five (5) years after expiration of the agreement. 2.29. GROSS RECEIPTS Gross receipts means all monies paid or payable to the Trust for sales made or services rendered, at or from the site, or from any other source, related directly or indirectly to the site whether collected or uncollected, for cash or for credit. Gross receipts shall be maintained for accounting purposes in a segregated account acceptable to the Trust, which shall be with an FDIC bank located within the City. 2.30. REPAIRS AND REPLACEMENTS At all times during the term of the Contract, Successful Proposer(s), if needed, shall repair and maintain all of its equipment and furnishings according to reasonable standards acceptable to the Ciry/Trust. Documentation of said repairs or replacements shall be maintained and provided to the City/Trust. Successful Proposer(s) shall be solely responsible for the costs of any of these repairs and/or replacements. The Successful Proposer(s) shall also be responsible for any and all damage to the facility or property resulting from its operation, which shall be promptly repaired by the Successful Proposer(s) at its own expense. The Successful Proposer(s) shall receive approval by the Trust's Executive Director or Designee prior to making any such repairs. At the end of the contract period, the Successful Proposer(s) shall leave the locations in at least the same or better condition as they were at the commencement of the contract, less normal wear and tear. 2.3I. COMPENSATION.TO THE TRUST Each Proposer shall provide a Proposal regarding the compensation to be paid to the Trust (Revenue Streams) for use of said concessions/structures/products . Proposer shall submit its Fee Proposal for the use of said concessions/structures/products in which the Trust is seeking, at a minimum, a flat monthly fee and a percentage of sales as a fee structure. 2.32. CHANGES/ALTERATIONS/ADDENDA Proposer may change or withdraw a Proposal at anytime prior to Proposal submission deadline; however, no oral modifications will be allowed. Written modifications shall not be allowed following the proposal deadline. Any.changes to the RFP requirements will be made by written addenda by the Trust/City and shall be • considered part of the RFP. Upon issuance, such addenda shall be incorporated into the agreement _;1.. documents,.and shall prevail over inconsistent provisions of earlier issued documentation. 2.33. ACCOUNTING AND FISCAL CONTROLS The Successful Proposer will be required to provide the services of an independent Certified Public Accountant (CPA) who shall be responsible for the accounting and fiscal control of the site operation, Page 30 of 37 Request for Proposals (RFP) 263248 including, without limitation, daily inventory, sales records, and revenue reports. The CPA shall be acceptable to the Trust/City and its role will be delineated in the Contract with Successful Proposer. 2.34. ADDITIONAL SERVICES Services not specifically identified in this request may be added to any resultant contract upon successful negotiation and mutual consent of the contracting parties. 2.35. RECORDS During the contract period, and for a least five (5) subsequent years thereafter, Successful Proposer shall provide City access to all files and records maintained on the City's behalf. • 2.36. TRUTH IN NEGOTIATION CERTIFICATE Execution of the resulting agreement by the Successful Proposer(s) shall act as the execution of the truth -in -negotiation certificate stating that all wage rates and any other factual unit costs supporting the compensation of the resulting Agreement are accurate, complete, and current at the time of contracting. The original contract pricing, product additions and any other additions or subtractions thereto shall be adjusted to exclude any significant sums by which the City/Bayfront Park Management Trust determines the contract price was increased due to inaccurate, incomplete, or non -current wages, rates or other factual unit costs. 2.37. OPTIONAL CONCEPTS As part of this RFP and as the Trust/City is receptive to new and innovative ideas, the Trust/City is providing the option and opportunity for any of the Proposers and provide for more efficient (revenue generating) concession services to the Trust/City. Page31 of37 Request for Proposals (RFP) 263248 3. Specifications 3.1. SPECIFICATIONS/SCOPE OF WORK The Bayfront ParkManagement Trust ("Trust") is seeking competitive proposals for Concessions/FoodJMerchandise Plan(s) and Operation(s) for City of Miami's Bayfront Park. The Trust has identified seven potential concession locations (see Exhibit "A." in Header/Attachments Section). Proposers may propose uses for all locations, an individual location, any combination thereof or other locations not contemplated by the Trust. Mildred and Claude Pepper Bayfront Park is a 32-acre site, located at 301 N. Biscayne Boulevard, Miami, Florida 33132, in the Downtown Miami Harbor District - adjacent to the Central Business District. Bayfront Park is located at the epicenter of downtown Miami and hosts numerous concerts and special events throughout the year. Downtown residents use the facility daily for dog walking, exercise and communing with nature. The Park's unsurpassed natural beauty draws tourists from around the world. The Park is a destination for yoga classes, adult kickball tournaments, the farmers' market, exercise "boot camps," charitable walks and runs, corporate sampling opportunities, as well as concerts and special events. Each calendar year, the Trust's facilities usually host an average of 60 special events with total average annual attendance over 400,000. The events hosted by the Trust are as varied as the community, ranging from ethnic festivals to annual, free community celebrations such as (July 4) America's Birthday Bash, and to long-standing traditions such as the Corporate Run. The Bayfront Park Amphitheater is currently under the management of Live Nation, the largest promoter of live music on the planet. Expenditures in excess of $2.2 million were recently invested in improving the amphitheater. Bayside Marketplace, a General Development property with a reported ten (] 0).million annual visitors, anchors the north side of the park. North of Bayside Marketplace is the American Airlines Arena, home of the National Basketball Association's Miami Heat and numerous concerts and special events. Additionally, there is much waterfront development ongoing in Miami's Downtown Harbor District and the Trust is seeking a Concessionaire whose proposal will complement that development. A. Developments Current developments underway include: 1. Watson Island: Horne to Jungle Island Gardens, Miami Children's Museum, the Japanese Gardens, and future potential location for a mega -yacht marina, hotel and heliport. 2. Bicentennial Park: The proposed Museum Park at Bicentennial, 1075 Biscayne Boulevard, is currently in development. In the future it will be home to a spectacular public park, as well as the Miami Museum of Art and the Miami Museum of Science: Bicentennial is currently used for concerts and special events and is the site of Cirque du Soleil's bi-annual performances in Miami. 3. Performing Arts Center: North of Bicentennial Park, between Northeast 13th and 14th Streets on Biscayne Boulevard, is the location of the .Adrienne Arsht Center for the Performing Arts. The facility features two concert halls, the Ziff Ballet Opera House and Knight Concert Hall, which contains large; fully equipped stages and can accommodate audiences of up to 2,400 and 2,200 people respectively. Additionally; in the area immediately adjacent to Bayfi-ont Park private developers have constructed a combination of over 10,000 rental and condominium units. The projected residential population will create a new and more vibrant urban core. The Successful Proposer will have an opportunity to provide food/merchandise concessions to downtown Miami's burgeoning, affluent community. B. Facilities If existing facilities do not support the Successful Proposer's developmental, management, and operational . plan, then ,the:Successful Proposer shall construct and maintain the capital and non -capital improvements, upon approval of the Trust and Miami City Commission, to accommodate patrons, which shall become property ofTrust-at contract's•end or removed at the Trust's prerogative. Proposer must submit, but not be limited to..a detailed description of its developmental, management, and operational plan, design of operations, renderings, site plan, cost analysis, forecasted revenue projections, schedule of completion, etc. The Successful: Proposer(s) shall be responsible for all costs associated with any required modification to the existing site plan The Proposer shall be responsible for obtaining all necessary state and local building Page 32 of 37 Request for Proposals (RFP) 263248 permit approvals, including but not limited to, permits issued by Miami -Dade County, the City of Miami, U. S. Army Corps of Engineers, Department of Environmental Resource Management, Dade County Health Department, South Florida Water Management District and the Department of Environmental Protection. All costs associated with these permits shall be the responsibility of the Proposer. If the Proposer obtains the,services,ofn licensed.contractor, then it shall be the responsibility of the Successful Proposer to provide a copy of the contract with the licensed contractor to the Trust's Executive Director for review and approval thirty (30) days before commencement of the project. The Trust reserves the right to modify or reject a service agreement in the event that tenns are unfavorable to the Trust. The construction of any improvements shall be contingent on the City's/Trust's prior written approval of the site plan. C. Type of Enterprise The City/Trust would be interested in a business venture that would complement the venue's already existing services in an environmentally responsible manner. D. Capital Improvements and Maintenance The City/Trust shall provide in an "as is" condition, the Site(s) to Successful Proposer. The Successful Proposer shall be responsible for the capital improvements of the Site(s) and full maintenance in a satisfactory manner as determined by the Contract Administrator. The Successful Proposer shall be required to design, provide, and install all furnishings, fixtures, trade futures, equipment, finishes, and signage necessary to manage and operate the site. E. Set-up Plan The City/Trust shall notify Successful Proposer of all scheduled event(s). Prior to each event, the Successful Proposer shall meet with the designated Trust representative to present and discuss the Concessionaire's plan for that event, if necessary. F. Management Reports The Successful Proposer shall maintain accurate and complete financial records in a manner approved by the Trust. These records shall be subject to inspection by the Trust and/or the City. The Successful Proposer will be required to submit a monthly statement of gross revenues as defined in the proposal. In addition, each year an annual financial statement of gross revenues shall be submitted to the City/Trust, which statement shall be accompanied by an opinion of a certified or licensed public accountant. Records shall be maintained for at least five (5) years following the last year of the teen of the Contract. G. Taxes The Successful Proposer shall be responsible for and pay all federal, county; state; and local taxes, as applicable, arising in connection with the services or as may otherwise result from this agreement. H. Internal Controls Successful Proposer shall provide the City/Trust with a letter from an independent Certified Public Accountant (CPA) certifying that the Successful Proposer's intemai controls are adequate to safeguard its assets and properly reconcile accounting transactions. The City/Trust reserves the right to audit the records of the Successful Proposer(s) at any time during the performance of this Agreement, and for a period of five (5) years after expiration of the agreement. I. Accounting and Fiscal Controls The Successful Proposer will be required to provide the services of an independent Certified Public Accountant (CPA) who shall be responsible for the accounting and fiscal control of the site operation, including, without limitation, daily inventory, sales records; and revenue reports. The CPA shall be acceptable to the City/Trust and its role will be delineated in the Contract with Successful Proposer. J. Exhibits Exhibit A (See attached PDF document in the Header/Attachments) — Map of Bayfront Park Potential Food/Merchandise location Sites Exhibit B (See attached PDF_document in the Header/Attachments) —.Current Schedule of Events Page 33 of 37 Request for Proposals (RFP) 263248 4. Submission Requirements 4.1. SUBMISSION REQUIREMENTS The following documentation should be included as a minimum in. the Proposal and submitted to the City/Trust. Instructions to Proposers: Proposers should carefully follow the format and instructions outlined below, observing format requirements where indicated. Proposals should contain the inforrnation itemized below and in the order indicated. This inforrnation should be provided for the Proposer and any sub -consultants to be utilized for the work contemplated by this RFP. Proposals submitted which do not include the following items may be deemed non -responsive and may not be considered for contract award. The response to this solicitation shall be presented in the following format. Failure to do so may deem your Proposal Non -Responsive. Only hard copy submissions will be accepted For delivery location please review Section 1.79, Submission and Receipt of Responses. Proposer nzust submit an original response along with eight (8) copies -and one copy on CD. Failure to do so may deem your Proposal non -responsive. 1. Cover Page The Cover Page should include the Proposer's name; Contact Person for the RFP; Firm's Liaison for the Contract; Primary Office Location; Local Business Address, if applicable; Business Phone and Fax Numbers; Title of RFP and Number; Federal Employer Identification Number or Social Security Number. 2. Table of Contents The Table of Contents should outline, in sequential order, the major sections of the Proposal as listed below, including all other relevant documents requested for submission. All pages of the Proposal, including the enclosures, should be clearly and consecutively numbered and correspond to the Table of Contents. . 3. Executive Summary: A signed and dated summary of not more than three (3) pages containing the Proposer's Qualifications and Experience; Development, Management, and Operational Plan; and, Capability and Approach to Scope of Work, as contained in the submittal. Proposer should include the name of the organization, business phone and contact person. Provide a summary of the work to be performed by Proposer. 4. Proposer's Qualifications and Experience a) Describe the Proposer's organization, history and background, tax status, principals, owners, board of directors and/or board of trustees, and number of professionals 'employed. b) Describe the Proposer's organizational chart; years Proposer has been in business providing a similar service(s), and indicate whether the Trust and or the City has previously awarded any contracts to the Proposer. If so, discuss the nature of the contract, term, and overall value. Indicate whether Proposer is, or has been, in arrears of payments to the Trust/City on any Trust/City contract within the past five (5) years. c) Provide date Proposer was incorporated/organized; State(s) incorporated/organized in; d) Provide its relevant experience related to the provision of developing, managing, and operating similar projects, particularly for a governmental entity and for a similar venue, within the past three (3) or more years. Include a list of clients for which Proposer has provided services of a similar nature, and include name of reference, contact name, period of time; and overall services provided. References are subject to verification by the Trust/City and will be utilized as part of the evaluation process. e) Provide the Proposer's and any employee(s), parMer(s), principal(s), officer(s) or owner(s) of the firm, and/or the firm or any of its affiliates or parent, including joint ventures, most recent and/or current experience in performing these services, including any previous Trust/City experience. _ f) : Provide resumes for the principal personnel who will be assigned to this engagement and describe their relevant experience in the past three (3) years in providing similar services. Include the name of the principal, the names of those members of the firm designated to assist and their various areas of required expertise: The.Trust and/or the City reserves the right to contact any -reference as part of the evaluation process. Page 34 of 37. Request for Proposals (RFP) 263248 g) Provide details of any lawsuits, bankruptcies, indictments, or investigations involving the Proposer, an employee(s), partner(s), principal(s), officer(s) or owner(s) of the firm, and/or the firm or any of its affiliates or parent, including joint ventures, or any of its principals over the last ten years. h) Provide actual data comparisons for comparable facilities detailing your experience, including: Overall Revenues (gross and net) ii. Points of Sale iii. Sales per capita iv. Projection of Monthly and Seasonal Revenues to be earned by Successful Proposer including a breakdown for each type of prospective service (i.e., Concessions, Catering). i) Provide three (3) recent Letters of Reference on letterhead, for whom similar services have been performed. Include those from governmental entities and private entities as applicable. This information is subject to verification as part of the evaluation process. j) Provide the name and experience of those individuals who will be assigned to the Trust and/or the Ciry's engagement and who will be working directly with the Trust and/or the City's Contract • Administrator. Describe those individuals' relevant experience in the past five (5) years in providing similar services and how long individual has worked for Proposer. k) Provide at least one (1) financial reference on bank or financial institutuion letterhead, attesting that the Proposer has sufficient available capital and/or financing to operate the concession and meet the monthly use fee. 1) Provide copies of its most recently audited Financial Statements of Proposer for the past three (3) years. If audited Statements are not available, a CPA Compilation Report will be accepted for those companies that are not publically traded. m) Provide the City with a letter from an independent Certified Public Accountant (CPA) certifying that Proposer's internal controls are adequate to safeguard its assets and properly reconcile accounting transactions. n) Should Proposer propose to utilize a Sub-Contractor(s) to perform any of the services, Proposer must identify Sub-Contractor(s) and those services to be performed. Proposer must provide subcontractor(s) qualifications and experience in detail, highlighting all similar experience as addressed in this RFP and anticipated to be performed by the subcontractor(s). Proposer must clearly reflect in its Proposal any Sub -Contractors proposed to be utilized, and provide for the Sub -Contractor the same information required of Proposer. The Trust/City retains the right to accept or reject any Sub -Contractors proposed. 5. Development. Management and Operational Plan and Approach a) Describe your overall Development, Management and Operational plan(s), approach, and proposed use of the facility. Include an overall description of proposed operations including, but not limited to, marketing concepts; permit and licensing requirements; construction requirements, project schedule and completion timelines; capital equipment/items./investment requirements; forecasted revenues, profit, and losses, etc. b) Provide Proposer's staffing, including the Proposer's Contract Manager. Include how it would provide and meet, on an as needed basis, staffing requirements. c) Provide Plan to ensure safety in all areas of Proposer's service at the facility. Also detail your Plan to maintain and ensure a proper state of cleanliness, and include steps to be taken to ensure clean and safe sanitary conditions in accordance with all local, state, and federal regulations and the handling of environmental issues including initial and ongoing employee training, storage of hazardous materials, chemical usage, and use of protective equipment. d) . Provide plan to manage existing equipment, along with repairs and replacements of same. As _.. applicable, discuss any proposed capital investments by Proposer to said equipment or for the facility for the performance of services. e).• Provide a_sample menu proposed for breakfast, lunch, dinner service, along with any daily specials . proposed. Identify.Proposer's menu planner, and provide proposed prices and portion sizes, and generally discuss the extent to which you will purchase ready -prepared foods as opposed to on -premise preparation of raw food products. Include the USDA grade of fresh meats, use of fresh and frozen hamburger patties;..- --grilled, -fried.foods,standard for tuna used, use of fresh, frozen and canned vegetables, use of fresh or Request for Proposals (RFP) 263248 canned fruit, use of preservatives, content of salad dressing, baked goods, etc., normally used in a similar cafeteria operations. f) Submit staffmg requirements and how<Proposer will provide back-up staffing. Describe training provided to staff and supervisor to manage staff and food service operations. 6. Fee Proposal a) Proposer shall submit its Fee Proposal for the use of said facility in which the Trust/City is seeking, at a minimum, a flat monthly fee.and a percentage of sales as a fee structure. b) The Trust/City the will consider all fee proposals to determine that which is/are in the best interest(s) of the City. c) Provide detail on its proposed Management Reports and reporting system to verify revenues created. Discuss definition and understanding of "gross receipts," and how they would apply within the Management Reports. Include a sample of anticipated reporting format and monthly report format. Each Proposer shall provide a Proposal regarding the compensation to be paid to the Trust/City for use of said facility(ies). Page 36 of 37 Request for Proposals (RFP) 263248 5. Evaluation Criteria 5.1. EVALUATION/SELECTION PROCESS AND CONTRACT AWARD - The procedu e-forthe response, evaluation, selection and award is as follows: (1) An Evaluation Committee ("Committee") will be created by the Trust and approved by both the Executive Director of the Trust and the City Manager to evaluate each Proposal, to determine the firm, corporation, joint venture, partnership, individual, or other legal entity that is most advantageous and in the Trust and the City's best interest. Proposals will be reviewed and evaluated. The Evaluation Committee may require an oral presentation from Proposer(s). The Committee will be responsible for recommending to the Executive Director of the Trust and City Manager the most qualified firm(s) with whom to negotiate a Contract, and the City Commission must approve the recommendation for award. As part of the evaluation process, the Trust and the City may conduct a background investigation. Submission of a response constitutes acknowledgment of the process and consent to such investigation as necessary. (2) The Evaluation Committee reserves the right, in its sole discretion, to request Proposers to make oral presentations before the Committee as part of the evaluation process. The presentation may be scheduled at the convenience of the Evaluation Committee and shall be recorded. (3) The Evaluation Committee reserves the right to rank the Proposals and shall submit its recommendation to the City Manager for acceptance. If the City Manager accepts the Committee's recommendation, the City Manager's recommendation for award of contract will be posted on the City of Miami Purchasing Department website, Current Solicitations and Notice of Recommendation of Award Section. The notice of the City Manager's recommendation can be found by selecting the details of the solicitation and is listed as Recommendation of Award Posting Date and Recommendation of Award To fields. If "various" is indicated in the Recommendation of Award To field, the Proposer must contact the buyer for that Solicitation to obtain the suppliers names. The City Manager shall make the recommendation to the City Commission requesting the authorization to negotiate and/or execute an agreement with the recommended Proposer(s)_ No Proposer(s) shall have any rights against the City arising from such negotiations or termination thereof. (4) Either the Trust's Executive Director, City Manager, or City Commission further reserves the right to accept or reject any recommendation. (5) The City Commission shall consider the Trust's Executive Director's, City Manager's and Evaluation Committees' recommendation(s) and; if appropriate and required, approve the City Manager's recommendation(s) and authorize the City Manager/Executiv'e Director to negotiate and execute a contract between the Successful Proposer and the Trust/City of Miami. The City Commission may also reject any or all responses. The Trust will negotiate a Contract with the Successful Proposer(s), or recommend that the City Commission reject all proposals. Such resulting Contract(s), which will be furnished by the City, will contain certain teens as are in the City's/Trust's best interests, and will be subject to approval as to legal form by the City Attorney. Proposals shall be evaluated based upon the following criteria and weight: Experience and Qualifications, in providing food or concession services to public (including reference checks): 25% Demonstrated Financial Capacity: 20 % Minimum Use Fee and/or Percentage Bid: 20 % Description of Operations and Impact on Park: 20 % Unique Quality or Contribution to Product Diversity: 10% Description of Use of Green Products For Food/Beverage Services: 5% Page 37 of 37 1 MlkNl Proposers' name: Conway Tours, Inc. d/b/a Gray Line Miami Contact Person for the RFP: Julia M. Conway, Vice President Primary Office Location: Bayfront Park, Tina Hills Pavilion, 301 N. Biscyane Blvd, Miami, Florida 33132 Mailing Address: Post Office Box 380822, Miami, Florida 33138 Phone: 800-336-8233 Fax: 305-759-7636 Email: j.conway@graylinemiami:com RFP Title & Number: . RFP for Food/Merchandise Concession Plan. and O:perations for Bayfront Park # 263248 FEiIN: 65-0206570 RECEI /FD 114PR 28 PM 2: 26 P ISCILL;, 4 TH0 -IPS0 CITY CLERK, CITY OF NiMI..FL_ EMAIL: CoA 4 f e SIGNED BY: Certification Statement Please quote on this form, if applicable, net prices for the item(s) listed. Return signed original and retain a copy for your files. Prices should include all costs, including transportation to destination. The City reserves the right to accept or reject all or any part of this submission. Prices should be firm for a minimum of 120 days following the time set for closing of the submissions. In the event of errors .in extension of totals, the unit prices shall govern in determining the quoted prices. We (I) certify that we have read your solicitation, completed the necessary documents, and propose to furnish and deliver, F.O.B. DESTINATION, the items or services specified herein. The undersigned hereby certifies that neither the contractual party nor any of its principal owners or personnel have been convicted of any of the violations, or debarred or suspended as set in section 18-107 or Ordinance No. 12271. • All exceptions to this submission have been documented in the section below (refer to paragraph and section). EXCEPTIONS: We (I) certify that any and all Information contained in this submission is true; and we (1) further certify that this submission is made without prior understanding, agreement, or connection with any corporation, firm, or person submitting a submission for the same materials, supplies, equipment, or service, and is in all respects fair and without collusion or fraud. We (I) agree to abide by all terms and conditions of this solicitation and certify that I am authorized to sign this submission for the subrnitter. Please print the following and sign your nsrne: SUPPLIER NAME: r; v./ 1DL1 ADDRESS: P •CG• NOY -&3 -7 (M4 -64-1 A ?3f.gg PHONE: - `�� 6 Z3� FAX: Imdif.c0,4 c e -i—L'1 . L. Ea `61. TITLE: c�t+� DATE: ( f --FAILUREITO-COMPLETE. SIGN. AND RETURN THIS FORM SHALL ©ISOUALIFY THIS Faze 2 of 38 Certifications Legal Name of Firm: n1- Entity Type: Partnership, So1e;Proprietorship, Corporation, etc. C0 f-Pe ll eta/ Address, City, State, Zip, Contact Name, Phone Number: £5 1111` 1..E eaor arY8 fl/ iQ f�€ OE. (. (or/ t ' E` -, Office Location: City of Miami, Miami -Dade County, or Other 71,14 HI f64t&-End . 61 f(. fimcA-.44/e. 6e,.V . � t. 3_`[27_ j r ' Occupational License Number: L1� 3c1,3i • 867E 79o, Occupational License Issuing Agency: CtT'," OF / `1 i Occupational Lic‘nse Expiration Date: (ffl Respondent certifies that (s) he has read and understood the provisions of City of Miami Ordinance No. 10032 (Section 18-105 of the City Code) pertaining to the implementation of a "First Source Hiring Agreement": (Yes or No) Do you expect to create new positions in your company in the event your company was awarded a Contract by the City? (Yes or No) Li the event your answer to question above is yes, how many new positions would you create to perform this work? Fr Please list the title, rate of pay, summary of duties, number of positions, and expected length or duration of ail new positions which might be created as a result of this award of a Conn -act. Will Subcoutractor(s) be used? (Yes or No) t9 Page 3 of 38 If the above answer is no, please indicate the name of the city (end user) department that your contract will serve: Provide brief description of the project or service to be provided UWe hereby state compliance with the City of lvlia_rni Living Wage Ordinance, Section 18-556 through Section 18-559 as suarized -n Sect j -i,40 of the General Terms and Condtions? (Yes or No) Page 4 of 38 2 TABLE OF CONTENTS 1. Executive Summary - Pages 3-5 2. Qualifications and Experience — Pages 6-7 Company Summary & Incorporation Status Organizational Chart Overall experience & Relevant Experience Client List Project Personnel Experience Statement Ensuring No Legal Obstacles Revenue Data, Sales Charts & Projections Letters of Reference Financial References & Statements CPA Letter 3. Development, Management and Operational Plan and Approach — Pages 8-9 Overall Plan Staffing Safety Management Products Training 4. Fee Proposal — Page 10 Attachments —A through U A. Bayfront Park map denoting existing and proposed locations B. Tina Hills Pavilion current utilization photos C. Kiosk location and current utilizations photos D. Rendering of new ticket trailer E. Organizational Chart F. Client List G. Letter of Reference one H. Letter of Reference two I. Letter of Reference three J. Resumes K. 2010 YTD by Distribution Channels L. 2010 YTD Total Sales M. 2010 YTD Gross Revenue N. Gross Revenue Projections 0. Passenger Projections P. 2010 YTD Ridership Q. Financial Reference Letter R. Financial Statements S. CPA Letter T. Photo of Open Top Double Decker U. Copy of Occupational License 3 Executive Summary In support of our request, Julia M. Conway, Vice President of Conway Tours, Inc. d/b/a Gray Line Miami, PO Box 380822, Miami, Florida, 33132, phone 800-336-8233, mobile 954-444-2028 and email j.conway@graylinemiami.com, respectfully presents the following information as required: In March 2009, Conway Tours, Inc. d/b/a Gray Line Miami began developing the infrastructure and in - destination organization for the Miami Sightseeing Hop On Hop Off service. As a completely new product and service to the Miami market, it has been a "from scratch, ground floor" project which has included presentations, negotiations and contractual arrangements with Miami -Dade County and the three municipalities - the City of Miami, the City of Miami Beach and Coral Gables. Efforts have required considerable local knowledge and leverage capabilities. As a 20-year old company in the south Florida, Conway Tours, Inc.'s reputation, relationships and longevity in this complex market have paved the way to achieving requirements for implementation. Furthermore, as an existing transportation and tour company, Conway Tours, Inc. owns many of the local and state required permits currently required. The contents of this RFP outline the key points of the business plan, including: a company organizational summary; service description; projections; implementation strategy; sales forecasts based on vehicle allocation, capacity, seasonality and frequency; a summary of management and staffing; financial plan and overview; and, projected scenario. Our existing test contract period with the Bayfront Park Management Trust has been integral to our success to date as we have created our "Central Station" here and advertise the Park globally as such. We hope to further that relationship to our mutual best interest with the proposal provided herein. Our Experience with 100 years of experience and presence in over 150 destinations around the globe where Gray Line representatives successfully operate Sightseeing Hop On/Off services that are iconic for destinations such as New York, San Francisco, Seattle, Paris, Rome, Munich, London, and many more. Our Industry Compliance and Personnel Standards 20 years of local experience and compliance with all permits and insurances required to operate tourist services. Our Seller of Travel registration with the State of Florida is number ST 13317. The Gray Line Miami Sightseeing service has been presented to local authorities and we have submitted processes and required cooperation to operate and deliver service for our visitors. We run a premier, motor coach service on a guaranteed departure basis. We operate a fully licensed and insured fleet of equipment, a state of the art maintenance facility, and have professionally trained drivers. Uniformed, professionally trained and pleasant staff are hired and employed in compliance with all Federal, State and local regulations. _ Our Insurances Our 'general liability and worker's comp insurance policies exceed the limits required by the RFP. We will provide appropriately endorsed and assigned policies as required. We can also supply the declarations page for our professional liability policy. 4 Miami Sightseeing Hop On Hop Off Service Our signature and singular service operates the only seven -day -per week product of its kind in the market. At present, we offer 24-, 48- and 72-hour passes with various local attraction combinations. 'Prices start at $39 per adult and $29 per child twelve and under. The Vehicles Uniquely red and prominently displaying the Gray Line Blue Diamond, the # 1 brand in sightseeing, these comfortable buses have an Art Deco graphics scheme. At present we have a combined fleet of Double Decker Open Top and low floor, single deck vehicles with wide doors for easy on and off. Additionally, we have equipped some of the buses with bicycle racks affording the opportunity to visit each destination with pedal power. The Tour From hip to history, from public art to Art Deco, our entertaining tour -introduces the magic city with facts and fun. Miami's international flavor, natural beauty, celebrity intrigue, cultural depth, iconic landmarks, diverse neighborhoods and rich history come alive as we blend the past, present and future. The tour narration is exclusively ours and has been developed with the guidance of Miami natives, city and county officials and area experts. The Route & Stops The thoughtfully designed route features the very best of Miami with sightseeing, attractions, art, architecture, museums, shopping and dining opportunities at every stop. The Beach and City Loops take you to every must - see district and neighborhood. The main hubs are Downtown Miami, Coconut Grove, South Beach and Miami International Airport. The route itself comprised two loops that intersect in Downtown Miami. Please refer to the included Map & User Guide. Times & Frequency The complete tour is three hours. Each side loop, the Beach and City, is 90-minutes. At present, the Beach stops are serviced on a 30-minute interval and the City stops every 60 minutes. All loops start and end at our Central Station at Bayfront Park/Bayside in Downtown Miami. The Central Station is served every 30 minutes. The first loop departs at 9:00am and the last loop returns at 6:OOpm. Tickets Buy on board. Buy online. Buy at designated Gray Line Miami point of sale and Kiosks. Buy from any trusted merchant partner displaying the Gray Line Blue Diamond Agent Seal. Rates & Services Miami Sightseeing will begin operations with a day pass rate of $39 Adult / $29 Child. There are 21 selected stops where users can Hop On/Off at will during the operation's schedule available on their pass. Full route or Tour is 3 hrs total. Multiday options will be available as well as combination of admissions to entertainment and other services in coordination with local service suppliers along the route, such as the Adrienne Arsht Center. Collateral Material 'All passengers will. receive-a'Map & User Guide that identifies the general loop, schedule and stops and also highlights the zones a'n'd "neighborhoods entertainment opportunities. This piece will also have spaces to insert - = advertisingarid publicity -brother Gray Line tours our partners and merchants around the route. 5 Marketing Gray Line Miami has executed a promotional plan for in -destination visitors in coordination with local Chamber of Commerce and the Greater Miami.. Visitors .Bureau..For the -international customers there is Gray Line's brand marketing, online positioning, partnership with global distribution companies like Expedia, Orbitz, Travelocity, etc. Important to mention is our participation in trade shows such as Fitur, WTM, ITB, MiTT, Fit; ASTA, La Cumbre, Pow Wow. We also maintain direct communication with wholesalers in Latin America and ASTA Travel Agents worldwide. New Product Development The need of developing and offer new and unique, activities is a result of bench marketing analysis of activities and sightseeing being offered. Miami is presented in the same way by many Tour Operators and there is opportunity to promote tours in diverse interest areas where Miami excels like: cultural, eco, adventure, dining, arts, etc. It is worth mentioning that the operation of Miami' Sightseeing is a result of this reasoning. • Networking through GLWW and Licensees is essential to.seize other business.opporfunities, see the relevance of advertising income related to the Miami Sightseeing operation. The Scope of our Proposal as it Relates to Bayfront Park — Please see park map — Attachment A • As a result of the recent acquisition of our Double Decker bus fleet, in the not -so -distant future we will move our operational office to a an off -site location very near Bayfront Park which will house our entire organization. At this time, it will no longer be necessary to occupy the space at Tina Hills Pavilion. We currently use the area for offices and storage space. It is staffed by company managers. Until such time, and with adequate notice, we propose to continue status quo. Please see photos —Attachment B. • We would like to maintain our established Central Station location at the eastern end of the service road between Bayfront Park and Bayside Marketplace, referred to as the bus turnaround area. This is the intersection and main drop off / pick up location for our system. There are currently Gray Line Miami signs marking the spot. We shade this area will umbrellas which that are removed during non -operational hours. We have positioned there a movable, branded Kiosk and a roll -away reservations podium. Both the kiosk and the podium are of considerable construction and are left in the area regularly, but can be moved easily for a special event or weather issue. We also set up a reasonably -sized shade shelter with commercial umbrellas and with misters for employee and passenger comfort. We have seating in this area as well. Please see photos — Attachment C • We would like to establish a second point of redemption and purchase at the corner of Biscayne Blvd. and NE 3`1 Street on the north end of the park as it fronts Bayside Marketplace. We will position a movable h branded Kiosk in the form of a ticket trailer. Please see conceptual rendering — Attachment D. With our Double Decker, Open Top buses (please see photo — Attachment T) we propose to fashion this trailer to resemble an open top bus. Like the kiosk, the trailer will be of considerable construction and can be left in the area regularly, but can be moved easily for a special event or weather issue. We propose to have a concrete or paver area installed with and will run power to the location. We will also set up a reasonably - sized shade shelter with a commercial awning attached to the unit for employee and passenger comfort. We propose seating in this area as well. For visibility and to identify by signage Gray Line's presence in the Park, we propose to place non -permanent banners, flags, signs and similar branded items in locations proposed by us and approved by the Park management. Our overall .presence in'the Park serves as main welcome center for passengers to redeem vouchers for purchases' made 'onliine, Meeting area for phone reservations, and point of purchase tickets. i left ..Respectfully ubmitted by) a.M. Conway, Vice President, Conway Tours, Inc d/b/a/ Gray Line MiamV Date 6 Qualifications and Experience Company Summary, Incorporation Status,,Overali. Experience & Relevant Experience Conway Tours, Inc. d/b/a Gray Line Miami (hereinafter referred to as CTI) is the officially licensed operating company for the Miami -Sightseeing Hop On Hop On Hop Off service in Miami: -Dade County. It is a 20-year old, State of Florida C Corporation and a wholly -owned subsidiary of Conway's Bus Service, Inc. d/b/a/ Gray Line Rhode Island. Conway's Bus Service is a State of Rhode Island C Corporation, in business since 1926. CTI's stakeholders include the Conway Group, represented by Julia M. Conway serving as Vice President, Alejandro Vazquez serving as Managing Partner and Rodolfo Contreras, serving as General Manager. Resumes for stakeholders are included. Additionally, we have two full-time managers on board with professional degrees and experience. Peter Conway, CEO of the Conway Group and Alejandro Vazquez both serve on the Board of Directors for Gray Line Worldwide. The Gray. Line brand, available in more than 150 destinations on six continents, is widely recognized as the. world's leader in sightseeing tours, transportation management, receptive operations and convention services. As a globally recognized Gray Line signature product, our Hop On Hop Off service has change the way tourists visit Miami. We are the only operator of this service in our market. Additionally, our parent company, Gray Line RI has been the licensee in that market since 1993 and Alejandro Vazquez is a principal in Gray Line Argentina. Our experience significant and global. By way of background, CTI has been incorporated in the State of Florida in 1990 and has enjoyed steady growth and earned a sterling reputation in the market, as a motor coach company and destination management company. In December, 2008, we acquired the Gray Line license for Broward, Miami -Dade and Monroe Counties. The license was officially awarded in March.2009. Immediate development of the Miami Sightseeing Hop On Hop Off service began. CTI holds all of the permits,. Seller of Travel Registration and contracts to operate the service. Additionally, CTI and its counsel have negotiated all contracts, deals, regulatory disclosure and provided all local leverage and knowledge regarding service design, development and implementation of the service. Our existing test -contract period with the Bayfront Park Management Trust has been integral to our success to date as we have created our "Central. Station" here and advertise the Park globally as such. We hope to further that relationship to our mutual best interest with the proposal provided herein. Please refer to the Executive Summary for review the nature of the test contract. In addition to. the Hop On Hop Off, our company offers comprehensive destination management services including inbound tour operations, sightseeing tours, car rental arrangements, hotel accommodations and multi - day packages. Our company is operated with professionalism, dependability and the superior standards for which Gray Line Worldwide is recognized. Our capability to produce exceptional results comes from the use of dynamic operational procedures, successful negotiations, vast networks of technological resources an.d a team of people with the spirit of service and creativity. Organizational Chart Please see attached chart —Attachment E Client List Please see attached list — Attachment F 7 Letters of Reference Please see attached letters — Attachments G, H & I Project Personnel & Experience Please see attached resumes — Attachment J CTIs day-to-day is managed by a General Manager (Rodolfo Contreras), Operations Manager (Julia Conway), Business Operations Manager (Jon Bono), Sales and Marketing Manager (Vacant), three reservationists (located in Argentina) and Hop On Hop Off Curb Supervisor. At present, all work on site with the exception of the off- shore reservationists. Dedicated to the Hop On Hop Off service are the Business Operations Manager and Curb Supervisor. The other personnel listed have duties for the overall operation of Gray Line Miami as a full -service inbound tour operator. Our part-time Graphic Designer and .Web -Developer are Independent Contractors based in Argentina. This relationship has been extremely cost effective and produced excellent results. Daily staffing include a customer service/sales person per bus, a lunch breaker and sales persons for the Central Station Kiosks Additionally, we will be filling a minimum of two customer service/sales positions in Miami International Airport and the Port of Miami as soon as our contract is arranged. These negotiations are in full swing and very near completion. Legal Obstacles We have no prior or pending legal proceedings, bankruptcies, indictments, or investigations. Data - Overall Revenues, Points of Sale, Sales & Projections Please see attached charts — Attachment K — 2010 YTD Distribution Channels Attachment L — 2010 YTD Gross Sales Attachment M — 2010 YTD Gross Revenue Attachment N — Gross Revenue Projections Attachment 0- Passenger Projections Attachment P — 2010 YTD Ridership Financial Reference Please see attached list —Attachment Q Financial Statements Please see attached list —Attachment R CPA Letter Please see attached list — Attachment 5 8 Development, Management and Operational Plan and Approach Overall Plan as it Relates to SayfrontPark —Please see park map —Attachment A • We propose that we will continue to occupy the space at Tina Hills Pavilion as operational headquarters until such time as we move off property to a single facility very near Bayfront Park that will house our entire organization and fleet. We currently use the area for offices and storage space. It is staffed by company managers. Please see photos — Attachment B • We would like to maintain our established Central Station location at the eastern end of the service road between Bayfront Park and Bayside Marketplace, referred to as the bus turnaround area. This is the intersection and main drop off / pick up location for our system. There are currently Gray Line Miami signs marking the spot. We shade this area will umbrellas which that are removed during non -operational hours. We have positioned there a movable, branded Kiosk and a roll -away reservations podium. Both the kiosk and the podium are of considerable construction and are left in the area regularly, but can be moved easily for a special event or weather issue. We also set up a -reasonably -sized shade shelter with commercial umbrellas and with misters for employee and passenger comfort. We have seating in this area as well. Please see photos — Attachment C • We would like to establish a second point of redemption and purchase at the corner of Biscayne Blvd. and NE 3rd Street on the north end of the park as it fronts Bayside Marketplace. We will position a movable branded Kiosk in the form of a ticket trailer. Please see rendering — Attachment D. We propose to fashion this trailer to resemble an open top. Double decker bus_ Like the kiosk, the trailer will be of considerable construction and can be left in the area regularly, but can be moved easily for a special event or weather issue. We propose to have a concrete or paver area installed with and will run power to the location. We will also set up a reasonably-sizedshade shelter with a commercial awning attached to the unit for employee and passenger comfort. We propose seating in this area as well. • For visibility and to identify by signage Gray Line's presence in the Park, we propose to place non -permanent banners, flags, signs and similar branded items in locations proposed by us and approved by the Park management. • Our overall presence in the Park serves as main welcome center for passengers to redeem vouchers for purchases made online, meeting area for phone reservations, and point of purchase tickets. Our marketing plan, permitting, licensing and revenue projections have been referred to in the Executive Summary, Qualifications and Experience sections and as attachments. If selected, we will work with Park management and City officials to secure the require permitting to build the concrete pad and to bring power to our proposed second location. Our existing areas are presently compliant. As we are currently operating in the Park, our timeline is immediate pending acceptance. Staffing CTIs day-to-day is managed by a General Manager (Rodolfo Contreras), Operations Manager (Julia Conway), Business Operations Manager (Jon Bono), Sales and Marketing Manager (vacant), and Hop On Hop Off Curb Supervisor. At present, all work on site at. We do not anticipate any major changes and this and our proposal to augment our present operation via this RFP does not impact current staffing. Dedicated to -the Hop On Hop Off service is the'Business Operations Manager and Curb Supervisor. The other personnel listed have duties for the overall operation of Gray Line Miami as a full -service inbound tour operator. Daily staffing include -a customer service/sales-person per bus, a lunch breaker and sales persons for the Central Station Kiosks 9 Safety Our operations are OSHA compliant. We continually inspect our buses and points of sale for safety compliance and will continue to do,so. Ourbuses'undergo-regular FDOT inspections and have aggressive preventative maintenance schedules. Management & Investment We expect our capital investment into our proposed augmented presence in the Park to be $30,000.00. Will we continue to maintain and manage our assets in the Park with diligence and care and, perform regular maintenance, upgrades and replacement as necessary. Products Please refer to the Executive Summary for an overview of our Product and pricing. Also, by way of inclusion, please refer to the Map & User Guide. Training We are continually hiring and training personnel for our customer service and sales positions. 10 Fee Proposal The newly founded Gray Line Miami Sightseeing Hop On Hop Off service is a burgeoning operation with strong forward looking profit potential. This vibrant new tour product has been embraced by the hospitality and tour industry and its leaders. Its operator, Conway Tours, Inc., is a well established and respected company with strong business and political ties throughout Miami -Dade, Broward and Monroe counties. As the Gray Line Operator in Miami, each day brings new global sales opportunities. As this project is just over a year in operation, we believe that our revenue projections are conservative and we expect great things in the future. it is important to note that all projections and forecast contained herein are based on actual revenue figures to date. This ridership and revenue attained .have occurred within the construct of the operational arrangements at this given moment. We have tested the waters with non -conventional Hop On Hop Off vehicles and relative infrequency for market scope. We have entered the market without:a large sales force in the streets. The test has been a huge success. We are confident that, with signature Double Decker, Open Top vehicles, seasonally appreciable frequency and a broader in -destination sales structure commensurate with capacity, revenue will far surpass expectations. With that said, it is difficult to commit to a percentage of shared revenue at this juncture. However, we realize that the parameters of the RFP encourage that model, and so, we propose the following: Increase our current $2,000.00 per month fee to $3,000.00 per month. (Please note that in the not -so -distant future, we will no longer require the use of the Tina Hills Pavilion space.) When we reach our 150 passenger per day break even figure for the overall system, we will pay 5% per ticket that is sold in from our Central Station location in Park back to the Park. Our method for tracking ticket sale is via our ticket processing platform with daily, weekly and monthly reporting. We propose to submit reports to the Park management monthly to report sales. Sales are tracked by ticketing device ID as assigned to a location and by sales agent ID login. E3AYFRONT PAR< 0 301N. 315CAYI\ EDAYP. !NW, FL. 33132 61 305.358.7550 INMAN-I-WI IV ATTACHMENT B TIENA HILLS PAVILION CURRENT UTILIZATION PHOTOS AU/ CHMENT C KIOSK LOCATION AND CURRENT UTILIZATION PHOTOS ATTACHMENT D 16' ORGANIZATIONAL CHART MLAM! Martaging Director Gen Dirty Ruddfo Contreras PR &Op<sations Dim:¢ Jule Go.Trcy ' IT and W (am) Rodago Segui Graph c Desy r_ (part time) Mato Icvg.span Rese,eons & BagE Main Jase. Cas2rat Res v�5mes & PictAssttant RcEotsra &Sxbelii Grab & Priv Savioes Spest V ). —G=iG etas op Mal - . .LfGar° ATTACHMENT E Syatn - Do�ci Rstri Srto ?_=Rides /Tax Guic Six it .ya Sdas Kiosk & POS F e—is ATTACHMENT F CLIENT REFERENCES LIST Gray Line World Wide Justin Moskowitz Manager, Partner Programs Justingravline.com Expedia Justin Moskowitz Manager, Partner Programs Justin,(`gravline.corn Orbitz Justin Moskowitz Manager, Partner Programs Justin(^7grayline.com Traveiocity Justin Moskowitz Manager, Partner Programs Justin(peraviine.com Alcatraz Tony Windsor Vice President - Suppliers & Business Development tonvCrese nie_ S.COrri All Tours - Sandro de Paulo- • - Manager sandr o(calitoura-merica City Discovery Alessia Bianco alessi-a@city-discoverv.com. RE FLIGHT CENTRE LibGo Travel Hunt, Lori USA Product Manager HuntL@libaotravei.com Get Your Guide sue wamke produr director - arericas war ; ke.OgetVour guide.cam GotoBus Amy Veiga Marketing & Sales Manager amv@eotobus.com Go West Tours Julia Matheson FIT Manager imatheson(E)eowesttour5.ca..., GTA North America Niki Peters Key Accounts niki.oeterst"'eta-travel.com Hotetbeds USA Ana Roque USA Extras Product Manager a.roaue(hotelbeds.com lsango Surbhi Bansal surbhi.bansal@isango.com Majestic Fernando E. Galatro • Direttor Comercial farnando!Emaie_tic! s=_.cam Meeting Point NA dan winston dan.winston@meetinraointno: tharneri.c=_._om MLTVacations Micki Peterson Product Manager- Florida moetersonImit/acatians.com Tourico Holidays Ofir Cohen • Regional Managing Director, Sales - North America, Middle East & Africa OfirPtouricoholidays.com Tours 4 Fun Jason Hong product manager iason.hon (Z-Dtours4nsn.con TRAVALCO , Giovanna Bello Product Director giovanna['travalco.com Tiip Shock Greg Fisher Director eiisher (tripshock.com Viator Jenny Crossling Product Director iennv(aviator.com MI 1r'._, 11VICIV 1 l7 THE Douci \ i R A M s G R O U D, [MPROV@NC THE WAY YOU DO BUSENESS To: City of Miami Bayfront Park Management Trust From: The Doug Williams Group, Inc_ Subject Lctter of Reference — Conway Touts, inc. d/b/a Grayline M.iar i The Doug Willia;ns Group was retained by Grayline Miami in September, 2010 to provide business consulting services related to evaluation of the financial viability of various growth strategies under consideration by Grayline Miami.. The evaluation process, conducted by Mr. Doug `y, Whams, Chief P-vecutive Officer, consisted of a comprehensive review of 1 _The strategic (long te! s l l) and tactical (short term) Om for Grayline Miami and related businesses. 2_The experience, capability, and business interests (goals) of the owners and stakeholders of Grayline 141ia T' 3.The current obstacles faced by Grayline and related businesses (people, mark -et, finanriat, etc). y 4.The details of the "hop t'in - hop off service, including what a.t features make that service unique and valuable to others. 5.The details of firm!-ici1 star-uheats and performance metrics (passengers, revenue, expenses, net income, etc.). 6.T.he competition, regional market opportunity, and business development strategies currently employed by Grayline �h`tami Based on this initial evaluation and subsequent working sessions with Ms_ Julia Conway and her pavers, it became c?ea- that Gm- line Miami is ear! 1 rely well ma;taa d by very experienced individuls- More importantly, Grayline Myarn3's rnanvagPrnent team has a strong orentadon toward service, and is clearly commi`t-ed to supporting the torism and job growth objectives of our South Floricommunity_ Based on my in-depth knowledge of Grayline Miami's bush ess model, growth strategies, and ope,ra*irg piirelples, I enth3siashcalt ' encourage the City of Miami Bay -front Park; Iv{an einent Trust to select Grayline IYiarni as the recipients of this Rt-f. Respectfully subrnitted, Mr. Doug Williams Chief .Executive Officer '6900 S.W. 1 07TI-i AVENUE. SuiTE 302 = IMIAr iI FLOI. DA 3 3 1 7 6 - 1 45 1 PHONE: 3055-598-9880 = FAX: 305-598-9580 Er AIl: H•tlllnrascaoup.CON; WEb: UwwT Irdouqunlli��eser«xp.com Al IA(:HMLN 1 H December 6- 2010 To the Board of Directors of Bayfront Park Management Trust, On behalf of the Greater Miami Convention and Visitors Bureau, we are pleased to support Gray Line Miami's presence in our destination and expansion of their partnership with the Bayfront Park Management Trust. Having the Gray Line brand, recognized worldwide as leader in sightseeing, is important and significant to our destination. Gray Line Miami has been a dedicated member of the GMCVB since commencing operation in early 2009. The Bureau has partnered with the Gray Line team on promotional projects and familiarization tours. They are always ready, willing and able to help us to present and promote our beautiful city to visitors and residents alike. We consider Gray Line a valuable asset to the tourism community and will continue to support their efforts. Please do not hesitate to contact me for further discussion. Sincerely, — 1 Rolando Aedo Sr. Vice President, Marketing & Tourism Brickeii ?.venue. 2700 mi. FL 3313i USA (305) 539-3000 M1AizmiandBeaches.. com rrUPI: 1L.UVNHY I I-IUk5 1-4O1-65 -3411 TO: 172,F75g7c.7if, ATTACHMENTZ Charles J. Fogarty Lieutenant Governor State of Rhode island and Providence Plantations Office of the Lieutenant Governor June 28, 1999 Ms. Chris Rice Conway Tours 10 Nate Whipple Highway Cumberland, RI 02864 Dear Ms I would like to take this opportunity to thank you for your assistance with the 1999 National Conference of Lieutenant Governors. With your help, we were able to execute one of the best conferences in the history of this organization. The conference was able to focus important discussion on "Education and the Global Economy" while at the same time showcasing the many attractions Rhode Island has to offer. Thanks again for all your help. If I may be of assistance to you in the future, please feel free to call my office. Personal Regards, Charles J. Fogarty Lieutenant Governor CJF:jbg State House • Providence, Rhode Island 02903-1196 - 401-222-2371 ATTACHMENT J RESUMES - STAKEHOLDER & KEY PERSONNEL EXPERIENCE & CAPABILITIES ALEJANDRO VAZQUEZ MANAGING DIRECTOR Experience: • Gray Line Board Member • 20 years experience in the Travel Industry. Sales, Operation management, budget development, staffing, marketing and e-commerce. • Analytical problem -solver, able to anticipate issues and create new systems that streamline operations, resolves concerns and improves efficiency. • Cross-cultural, fluent in Spanish, English and Portuguese, have extensive experience in Latin America. 6 Developed Gray Line Argentina and TopDestinations, an outgoing tour operator for Latin America with a Call Center in Argentina and home based agents in California, Florida and Colombia. Capability: Now I'm traveling once a month to Argentina and once a month to a tradeshow around the world. For family reasons I'll do my best to change it in 2011, and stay more time in Florida to be able to dedicate more time to GL Miami. JULIA M. CONWAY, VICE PRESIDENT & OPERATION MANAGER Experience: 6 Born and raised in the tour bus business. • 20 years experience in South Florida. 1990-2000 operated a fleet of charter motor coaches. 2000- 2009 business focused on complete destination management. • Well networked in Miami. Have experience, relationships and respect of local industry partners. Capability: I have complete dedication to the endeavor and have allocated all of my time and resources to its success. My role in has always been ground -level organization and management; hence, operations manager is part of my title. However, during this project, my abilities in relationship maintenance and building and overall big -picture business development have emerged as strengths. The more time I can spend doing this, the more successful we can be. R000LFO CONTRERAS, GENERAL MANAGER Experience: • Active participation for the development of Gray Line Guatemala from start up and integration to the regional inbound market and for cruise ship's shore excursions segment • National board experience coordinating Guatemala's participation in tradeshows and showcases and developing the country's cruise segment • Vast international sales experience for services in the Americas • Trained in hotel industry in Europe and early engagement in the tour industry by way of local Airline in Guatemala .C_ ,-Vast' background, education and training in Airline andHotel: operations, technology and business -- development. • Experience -in international sales and promotions, use of foreign languages and developing strong -networking and relations with international key players of the tourism industry. - Recognized as an innovative self-starter, able to work autonomously or as a team member -Demonstrated leadership skills including excellent interpersonal, oral and written communication skills, and strategic planning "Webbased sales orientation management, company developed as well as experience with in house systems in hotels and Gray Line World Wide systems and tools Capability:- l :possess both -line and management experience, working in areas of product development r,nora+l,rc rnctnmor con, ro color onri nrmmntinn in tnnricm - rmmnaniPc and JONOTI-IAN scOIT BONO, BUSINESS OPERATIONS MANAGER Education: ,Master of Arts, Student Development and Student Affairs Practice Appalachian State University — Boone, North Carolina May 2001 Bachelor of Arts, Economics and Finance Lock Haven University of Pennsylvania — Lock Haven, Pennsylvania May 1999 Professional Experience: The Art Institute of Fort Lauderdale — Fort Lauderdale, Florida Director of Residential Life and Housing December 2007 - May 2010 Position Responsibilities e Directed department which houses nearly 400 students in four buildings approximately 5 miles away from the main campus • Directly supervised the Assistant Director for Housing Operations and the Assistant Director for Residential Life and indirectly supervised two professional Residence Life Coordinators, 8 resident assistants, 2 desk/mail assistants, and 6 computer lab monitors • Managed all aspects of the residential life and housing budget (nearly $3 million dollars) including billing/revenue and expenses and responsible for the overall profit margin of the housing program e Oversee contractual relationships with regards to security, facilities management, and student transportation G Was responsible for all marketing materials and outreach to potential new residents as well as working with admissions representatives in the new student recruitment process Conducted disciplinary conferences for high level infractions of the housing license agreement and/or student code of conduct e Worked directly with the Dean of Student Affairs to implement fair and collaborative judicial processes • Served as appellate officer for all housing billing/penalties, and low level judicial sanctions e Coordinated with Assistant Director for Housing Operations all aspects of move -in, move -out, assignments, room changes and balancing all computer -generated reports G Provided after hour on -call assistance to residential life staff University of Miami — Coral Gables, Florida Residence Coordinator — Stanford Residential College July 2003 — December 2007 Position Responsibilities • Managed a two -tower complex housing approximately 950 students and faculty in -residence e Directly supervised 22'resident assistants, one professional staff assistant, one student program assistant, and four desk/mail assistants ®'Worked collaboratively with three live-in faculty members and one academic and career advisor in residence e Designed and implemented engaging.and innovative in -hall training for resident assistants with a focus on leadership, diversity, community building, expectations, and administrative skills Created and sL pported the'implementation of programming requirements designed to meet the needs of a . diverse studentpopulation with an emphasis on community building, social interaction, and resource Emerging Leaders Program - Coach Education Management Corporation, The Art Institutes Spring 2010 € Served as a "coach" for four residence life coordinators at sister institutions as they participated in a four month leadership and development program. 6 Participated in and led teleconference and web -based presentations, as well as met bi-weekly (teleconference) with specific mentees. Individuals Meeting Potential and Creating Tomorrow (IMPACT) University of Miami — Coral Gables, Florida 2004 — 2007 6 Spear -headed an initiative to offer a unique workshop for young, emerging leaders on the campus who demonstrated future leadership potential 6 Served on the committee that planned and implemented the educational curriculum for the first weekend retreat e Assisted in the selection/training of student leader facilitators e Coordinated solicitation of financial support and sponsorship e Attended workshop and provided leadership and mentorship for both the student facilitators and student participants Groisnon isaStin t .Destdr oth. Du To Sol` '94f.10 YTD Distribution Channels Ctaent;: Gray tine Sta`f( Concser:3es GLWW 0rbu2 % Cheap1ickd com: Island ',Queen To 4Fun Insarigos, Tourico; Alcaz Passengers Revenue 3364 $130,486 11 $429 152 $5,888 40 $1,520 528 $20,092 8 $312 2 $78 17 $623 77 $3,003 126 $4,794 Cfys7is�very 20 $780 Lvbeiy.Tra:. e( , , 2 $78 Mt mi Tours & Irs;o C Iiter ' 93 $3,627 R 30 $1,170 W TE 17 $663 40 $1,560 2 $78 15 $585 8 $312 5 $195 2 $78 2 $78 17 $663 70 $0 YTD by Distribution Channel E Gray Line Stair Condei yes GLWW Orbitz / Cheap T iickets.com Eisland Queen Tou s4-.un E insango! Tourico E Alcatraz Expedia CityDiscovery Liberty Travel Miami Tours & Info Center Go ToBus WWTE Groupon E T icketSwitth r-Infinity Holidays &Design Tours MLT Vacations F Duck Tours • p'.Explore Holidays South Florida Tours VIP Vouchers $35,000,00 $30,000.00 $25,000.00 $20,000.00 $15,000,00 $10,000.00 - $5,000,00 - Total Sales JAN FEB MAR APR MAY JUN JUL AUG SEP OCT NOV DEC ri Total Sales ATi TACi-1T i.er { f '? Gross Revenue 2010 MFq3206 14-, i9 345 645 514 527 439 $741 $13,455 $24,575 $19,476 $20,163 $15,716 $74 $1,345 $1,672 $3,841 $4,019 $2,670 $667 $12,110 $2.2,953 $15,639 $16,144 $13,04.6 793 680 686 $30,167 $26,223 $26,576 $3,391 $4,166 $4,469 $26,776 *22,057 $22,107 $35,000 $30,000 $25,000 $20,000 $15,000 $10,Q00 $5,000 $0 Net Revenue E Commissions Paid em ,3 1 2 3 4 5 8 9 Gross Revenue Projection w/ Transit Units 3 gi FEB MAR APR VI AY )1JT JUL AUGSEP OCT NOV DEC 2010 $741 $1_3,455 $24,575 $19,476 $20,163 $15,716 $30,167 $26,773 $26,576 $31,302 $36,624 $43,948 20/1 $54,935 $60,429 $66,472 $63,148 $63,780 $68,244 $88,717 $86,943 $89,551 $94,925 $99,671 $109,638 2012 $120,602 $126,632 $139,295 $133,723 $127,037 $125,767 $132,055 $134,696 $138,737 $145,674 $151,501 $154,531 w/ Doubie Deckers 3AN 1-1=t5 MAR APR MAY 3UN JUL AUG SEP OCT PIOV DEC 2010 $741 $13,455 $24,575 $19,476 $20,163 $15,716 $30,167 $26 773 $26,576 $31,302 $35,624 $43,948 2E2i1 $104,377 $132,943 $146,238 $107,352 $108,425 $116,015 $195,178 $147,803 $152,237 $161,372 $169,440 $197,348 201 $229,143 $2_53,263 $292,519 $227,329 $215,963 $226,380 $277,315 $228,983 $235,853 $247,645 $257,51 $278,155 $350,000.00 - $300,000.00 $250,000_0-0 $200,000.00 $150,000.00 $100,000.00 $50,000.00 wJ Transit Units w/ Double Deckers \rj $0.00 , , , , , . , , . , . , , O O O O O o 'L 1 'Y 1 '4 1 '1, 1, `, 'l, '`✓ -1, y y i. C. y N' 'Y 1 'i 1 ti N' ti 'Y 1 Passengers Projection vr/ Transit Units 3AN FEB, PEAR APR MAY JUN JUL AUG SEP OCT NOV DEC 2,010 19 345 645 514 527 439 793 680 686 803 939 1,127 2,011 1,409 1,549 1,704 1,619 1,635 1,750 2,275 2,229 2,296 2,434 2,556 2,811 2,012 3,092 3,247 3,5/2. 3,429 3,257 3,225 3,386 3,454 3,557 3,735 3,885 3,962 w/ Double Deckers JAN Ir -B MAR APR MAY JUN JUL AUG SEP OCT NOV DEC 2,010 19 345 645 514 527 439 793 680 686 203 939 1,127 2,011 2,676 3,409 3,750 2,753 2,780 2,975 5,005 3,790 3,904 4,138 4,345 5,050 2,012 5,875 6,494 7,500 5,829 5,538 5,805 7,111 5,871 6,048 6,350 6,604 7,132 6,000 5,000 4,000 3,000 2,000 7,000 2011 Projection 0 JAN FEB MAR APR MAY JUN JUL AUG SEP OCT NOV DEC Transit Units Double Deckers 8,000 7,000 6,000 5,000 4,000 3,000 2,000 1,000 0 2012 Projection JAN FEB MAR APR MAY JUN JUL AUG SEP OCT NOV DEC ---Transit Units ----Double Deckers JAN TOTAL OF RIDERS BY MONTH FEB MAR APR MAY JUN JUL AUG SEP OCT NOV DEC 'AN; Ct "ie i<|Z e§ Bank December 3, 2010 To whom it may concern: RE: Gonway Tours 1 Gray line Conway's Bus Service, Inc_ maintains a satisfactory deposit and lending relationship with Citizens Bank. They have available capita[, strong liquid; and access to financing am p.eased to provide this seer of recommendation for our hh ly valued customer_ If you requireanything furter,peas feel free tcontact me6rcy t 0i)885- 5893. Sincerely: Citizens Bank en Mi Vice Pree.irlent HI t/ l nfvl Cl� 1 M COT,,TWAY TOURS, INC. DECEMBER 31, 2009 BALANCE SHEETS (unaudited) CONWAY TOURS, INC. Period Ended December 31 ASSETS 29 nnes Current Assets: Cash ($1,147) $3,896 Market bie sPrn irities 0 0 Accounts receivable 0 0 Prepaid expenses 5,000 0 3 853 3,896 Properly, Plant and Equipment Land 0 0 Buildings 0 0 Buses J 0 0 Office equipment 0 0 Trucks and autos 0 0 Garage and equipment �0 0 0 0 Less: accumulated depreciation 0 0 Net property, plant and equipment 0 0 Accounts re: eivab e - related part. 71,230 106,230 $75,083 $110,125 BALANCE SHEETS (unaudited) CONWAY TOURS, INC. Period Ended December 31 LIABILITIES 2009 2008 Current Liabilities: Accounts payable $Ci Customer advances 0 Other current liabilities 200 200 Notes payable 0 Capital le se oblidations 0 Total Liabilities STOCKHOLDER'S EQUITY $0 0 1,230 1,230 0 0 200 1,230 Capital sty Tf, 5 77,535 Retained earnings (deficit) (2,652) 31,361 Total Stockholder's Equity 74,883 108,896 $75,083 $ 110,126 STATEMENT OF OPERATIONS AND RETAINED EARNINGS (unaudited) CONWAY TOURS, INC. December 31 Net Sales • Costs and expenses: Cost o; • sales_ - admissions General and administrative - Operating income 2009 is 2008 % $218,362 100.00% $88,887 100.00% 65,767 186,408 252,175 30.12% 18,147 . 2042% 85.37% 77,102 • 86_75% 115.48% 95,256 107.16% (33,813) -15A8% (6,369) -7.16% Interest. expense 0 010% 0 0.00% Interest income 0 0_00% 0 0.00% Other in o i(expense) 0 0_00% 0 0.00% Net income before taxes (33,813)-15.48% (5,369) Irrcorr;e taxes _ 0 0.00% • 0 Net income • (33,813)-15.48% (6,369) Retained eernirigs (deficit) at beginning of period 31,161 Retained earrangs (deficit) at end of period ($2,652) $31,361 37.730 -7_ 16% 0.00% .-7_i6% • I - SCHEDULE OF GENERAL MD ADMiNISTRA11VE EXPENSES (unaudited). CONWAY TOURS,114C. Year Ended Dumber S1 203'9 ZOD8 General and Administrative Expenses: 0. Officers salaries $0 • 0_00% $045.00% 41,307 • 22.16% 35,000 Other saEay and wages0 - 0.00%Gas, fuel and oil " 0 0.00% 0 0.00% Vehicle maintenance 0 0:00% • 0.00% 0 0.00% 0 t eased tires 0 OAO% Drivers' expenses 0 0_00% Insurance: °,- 0 con, Hu-�s - 0 0-00 k0 Officers' file_ 0 0.00% • 0 0.00% 0.00%Workers compensation 0 0_00% 0.00% 0 0_00% - 0 Health - Leased buses 47,253 25_35% 37,{}30p 48.03.03% Parking arid tolls • 0 0.00% 0 0.00% 0 0.00% Garage expenses 0 0.00%° Rent� Gray Line fees 29,313 15.73�:a 0 00 0"QO.00% 11,291 6.06% 0 Or+:ce equipment rentals 0 0_0°% cs12 9.10% Office expenses - other 37,691 2022% 1.18% 0 0.00% 0 0.00% OPffice O� 0 0_00% 0 a supplies 2.30%% 7,249 2_92 �o Telephone 4,292 192% Profassidnal fees 9,331 5.01% 0 0.00% 2,539 1.36% Travel 0 00% 995 1.99% 0 _ ± _1 9°!° ,116 O.60% 917 Lice zs .sand fees 0 0_00%0 O.00% ?011k) match Taxes: 0 0_t1^u°% O1° 0.00% FICA taxes " 0 0 0_00% Property taxes O.c�O% Fuel taxes 0 0.00% 0 O 00% O 0_&0% 00 00% Other Unemployment taxes 0 0.00°% 0 r Other taxes 1 O0% 0 u"OO �D 2,275 Dues and subscii�,tions -- DepreC Depreciation: Buses Ofce eeuipment Buildings Trucks and autos Donations Total General and -=.--Adminiakrative Expenses $186,408 - 100.00% 0 0_00% O 0-00% i1 0_009/o O. 0.00% 0 0.00% O o Or'.f01� 0.00%0 - 0_40% 0 0..00% 0 0.00% ___ 0 S77,109 __ 100.00°!° CONWAY TOURS, INC DECEMBER 31, 2008 BALANCE SHEETS (unaudited) CONWAY TOURS, INC. Period Ended December 31 ASSETS 2008 2007 Current Assets: Cash $3,896 $6,535 Marketable securities 0 0 Accounts receivable 0 0 Prepaid expenses 0 0 3,896 6,535 Property, Plant and Equipment: Land 0 0 Buildings 0 0 Buses 0 0 Office equipment 0 0 Trucks and autos 0 0 Garage and equipment 0 0 0 0 Less: accumulate-d depreciation 0 0 Net property, plant and equipment 0 0 Accounts receivable - related parties 106,230 108,730 $110,126 $115,265 BALANCE SHEETS (unaudited) CONWAY TOURS, INC. Period Ended Dece€nber 31 LIABILITIES 2008 2007 Current Liabilities: Accounts payable $0 $0 Customer advances 0 0 Other current liabilities 1.230 0 1,230 0 Notes payables Capital lease obligations - Total Liabilities STOCKHOLDER'S EQUITY 1,230 0 Capital stock 77,535 77,535 Retained earnings (deficit) 31,361 37,730 Total Stockholder's Equity 108,896 115,265 $110,126 $115,265 STATEMENT OF OPERATIONS AND RETAINED EARNINGS (unaudited) CONWAY TOURS, INC. December 31 Net Sales Costs and expenses: Cost of sales - admissions General and administrative Operating income 2008 % 2007 °Ia $88,887 100.00% $179,781 100.00% 18,147 20.42% 77:109 86.75% 95,256 107.16% (6,369) -7.16% 31,646 17.60% 137,049 76.23% 168,697 93.83% 11,084 6.17% Interest expense 0 0.00% 0 0.00% Interest income 0 0.00% 0 0.00% Otherincome/(expense) 0 0.00% (1,124) -0.63% Net income before taxes (6,369) -7.16% 9,960 5.54% Income taxes 0 0.00% 0 0.00% Net income (6,369) -7.16% 9,960 5.54% Retained earnings (deficit) at beginning of period Retained earnings (deficit) at end of period 37,730 . 27,770 $31, 361 $37, 730 SCHEDULE OF GENERAL AND ADMINISTRATIVE EXPENSES (unaudited) CONWAY TOURS, INC_ Year Ended December 31 '200B °Ic 2007 General and Administrative Expenses: Officers salaries $0 0.00% $0 0.00% Other salary and wages 35,000 45.39% 35,000 25.54% Gas, fuel and oil 0 0.00% 0 0.00% Vehicle maintenance 0 0.00% 0 0.00% Leased tires 0 0.00% 0 0.00% Drivers' expenses 0 0.00% 0 0.00% Insurance: Buses 0 . 0.00% 0 0.00% Officer' life 0 0.00% 0 0.00% Workers compensation 0 0.00% 0 0.00°I° Health 0 0.00% 0 0.00% Leased buses 37,036 48_03% 66,398 48.45% Parking and tolls 0 0.00% 3A. 1 0.25% Garage expenses 0 0.0-0% 0 0.00% Gray Line fees 0 0.00% 0 0.00% Rent 0 0.00% 0 0.00 /° Office equipment rentals 0 0.00% 0 0.00% Office expenses - other 912 1.18% 30,719 22.41 % Postage 0 0.00% 0 0.00% Office supplies 0 0.00% 416 0.30% Telephone 2,249 2.92% 2,7A'i 2.00% Professional fees 0 0.00% 0 0.00% Advertising 0 0.00% 0 0.00a%0 Travel 995 1.29% 537 0.39% Licenses and fees 917 1.19% 891 0.65% 401(k) match 0 0.00% 0 0.00% Taxes: FICA taxes 0 0.00% 0 0.00% Property taxes 0 0.00% 0 0.00% Fuel taxes 0 0.00% 0 0.00% Unemployment taxes 0 0.00% 0 0.00% Other taxes 0 0.00% 0 0.00% Dues and subscriptions 0 0.00% 0 0.00% Depreciation: Buses Office equipment Buildincs Trucks and autos Donations Total General and ;Administrative Expenses O 0.00% 0 0.00% O 0.00% 0 0.00% O 0.00% 0 0:00% O 0.00% 0 0.00% O 0.00% 0 0.00% $77,109 . 100.00% $137,049 100.00% CONWAY TOURS, INC. DECEMBER 31, 2007 BALANCE SHEETS (unaudited) CONWAY TOURS, INC. Period Ended December 31 ASSETS 2007 2006 $1,151 Current Assets: $6,535 0 Cash 0 i ,124 Marketable securities0 0 Acccounts receivable 0 T 75 Prepaid expenses 6,535 Property: Plant and Equipment: 0 0 Land 0 0 Buildings 0 0 Buses0 0 Office equipment 0 0 Trucks and autos 0 p p Garage and °? a:pment v 0 �� Less: accumulated depreciation -, Net property, plant and equipment 103,730 Accounts receivable - related parties 108,730 $115265 0 $ 106, 005 BALANCE SHEETS (unaudited) CONWAY TOURS, INC. Period Ended December 31 LIABILITIES 2007 2006 Current Liabilities: Accounts payable $0 $0 Customer advances 0 0 Other current liabilities 0 700 0 700 Notes payables Capital lease obligations Total Liabilities STOCKHOLDER'S EQUITY 0 0 0 700 Capita! stock 77,535 77,535 Retained earnings (deficit) 37,730 27,770 Total Stockholder's Equity 115,265 105,305 $115,265 $106,005 STATEMENT OF OPERATIONS AND RETAINED EARNINGS (unaudited) CONWAY TOURS, INC. Decernber 31 Net Sates 2007 _%_ 2006 $179,781 100.00°/a $194,452 100.00% Costs and expenses: General and administrative17.60% 28,250 31,648 a 149,618 Cost of sales - admissions 137,049 I623 /° 168,697 93.83% 177,868 11,084 6.17% 16,584 8.53% Operating income (3) 0.00% 0 0.00% 0.00% Inter est expenee 0 0.00°/0 0 0.00°I° Other income (1,124) -0.63% Otter inc�me!(ex; ease) ----- 16,581 � 8.53% 5 5°la 9,960 (700)0.53% Net income before taxes 0 0.00% Net taxes 9 5_54% 5 81 81 S-1' �° Met income Retained earnings (deficit) at beginning of period Retained earnings (deficit) at end of period 27,770 $37,730 11,889 $2 7 ,770 14.53°/a 76.94% 91.47% SCHEDULE OF GE1 EFi4,L.� CONWAY TOURS, INC. Year Ended December ? 1 General and Administr;:tip Officers salaries Other salary and wage;. Gas, fuel and oil Vehicle maintenance Leased tires Drivers' expenses Insurance: Buses Officers lit_ Workers corn pen;atici Leased buses 66,39f: 4-;.45% Parking and tolls 344 0.25% Garage expenses 0 0.00% Gray Line fees 0 0.00% Rent . 0 0.00% Office equipment rentals 0 0.00% Office expenses - other 30,719 22.41% Postage 0 0_00% Office supplies 416 0.30% Telephone 2,744 2.00% Professional fees 0 0.00% Advertising 0 0.00% Travel 537 0.39% Licenses and fees 891 0.65% 401(k) match 0 0.00% Taxes: FICA taxes Property taxes Fuel taxes Unemployment taxes Other taxes Dues and subscriptions Depreciation: Buses - Office equipment Buildings Trucks and autos Donations Total General and Fii1'min.stcath,e Expenses. O 0.00% O 0.00% 0 0.00% 0 0.00% 0 0.00% O 0.00% 0 0.00% O 0.00% 0 0.00% O 0.00% O 0.00% ? t J1 fo- l:r 11:J :ID 83,276 55.66% 279 0.19% 0 0.00% O 0.00% O 0.00% O 0.00% 27,397 18.31% O 0.00% 425 0.28% 3,762 2.51 % O 0.00% O 0.00% 1,258 0.84% 1,221 0.82% O 0.00% O 0.00% O 0.00% O 0.00% 0 0_00% O 0.00% O 0.00% O 0.00% 0. 0.00% O 0.00% O 0.00% O 0.00% o.0u SCHEDULE OF GENERAL AND ADMINISTRATIVE EXPENSES (unaudited) CONWAY TOURS, iNC. Year Ended December 31 General and Administrative Expenses: 2007 IC Of Officers salaries $0 0.00% $0 0.00% Other salary and wages 35,000 25.54% 32,000 21.39% Gas, fuel and oil 0 0.00% 0 0.00% Vehicle maintenance 0 0.00% 0 0.00% Leased tires 0 0.00% 0 0.00% Drivers' expenses 0 0.40% 0 0.00% insurance: Buses 0 0.00% 0 0.00% Officers' life 0 0.00% 0 0.00% Workers cornpensation 0 0.00% 0 0.00% Health 0 0.00% 0 0.00% Leased buses 66,398 48.45% 83,276 55.66% Parking and tolls 344 0.25% 279 0.19% Garage expenses 0 0.00% 0 0.00% Cray Line fees 0 0.00% 0 0.00% Rent 0 0.00% 0 0.00% Office equipment rentals 0 0.00% 0 0.00% Office expenses other 30,719 22.41% 27,397 18.3 1 % Postage 0 0.00% 0 0.00% Office supplies 416 0.30% 425 0.28% Telephone 2,744 2.00% 3,762 2.51 % Professional fees 0 0.00% 0 0.00% Advertising 0 0.00% 0 0.00% Travel 537 0.39% 1.258 0.84% Licenses and fees 891 0.65% 1,221 0.82% 401(k) match 0 0.00% 0 0.00% Taxes: FICA taxes 0 0.00% 0 0.00% Property taxes 0 0.00% 0 0.00% Fuel taxes 0 0.00% 0 0.00% Unemployment taxes 0 0.00% 0 0.00% Other taxes 0 0.00% 0 0.00% Dues and subscriptions 0 0.00% 0 0.00% Depreciation: Buses 0 0.00% 0 0.00% Office equipment 0 0.00% 0 0.00% Buildings 0 . 0.00% 0 0.00% Trucks and autos . ... 0 0.00% 0 _ . _ 0.00% Donations 0 0.00% 0 0.00% Total General and Administrative Expenses,., $137,049 100.00%` $149,618 •. _._, 100:00%-: , /yI IMLRiVICiv Robert J. Murray Certified Public Accoun#nt 12 Jason's Grant Drive Cumberland, Rhode Island 02864 To the President of Conway's Bus Service, Inc. Cumberland, Rhode Island I have compiled the accompanying consolidated balance sheets of Conway's Bus Service, Inc. and subsidiaries (the Company) as of December 31, 2009 and 2008, and the related consolidated statements of operations end ret wined earnings and the data included in the other financial infothiation section, for the years then ended, in accordance with Statements of Standards for Accounting and Review Services issued by the American Institute of Certified Public Accountants. A compilation is limited to presenting in the form of financial statements information that is the representation of the owners. I have not audited or reviewed the accormpany ng financial statements or other financial information and, accordingly, do not express an opinion or any other fort of assurance on them_ Robe' t J. Murray ATT15C1110ENT 1 U I(1 of )FiIcIITII POST THIS DOCUMENT IN A CONSPICUOUS PLACE. NOT TRANSFERRABLE OR VALID AT ANOTHER ADDRESS UNLESS APPROVED BY THE FINANCE DEPARTMENT, CITY OF MIA.MI 444 S.W.2 AVE 6TH FLOOR. MIAMI, FL 33130, PHONE (305)416-1918. EFFECTIVE YEAR OCT. 1, 2010 THRU SEP. 30, 2011 RECEIPT FOR CONWAYTOURS`INC DBA GRAY ISSUED OCT 12, 2010 TOTAL FEE PAID S131.00 ACCOUNT NUMBER 453931-00717909 RECEIPT NUMBER 192552-0002 NAME OF BUSINESS CONWAY TOURS INC DBA GRAY LOCATION 301 BISCAYNE BLVD IS HEREBY IN COMPLIANCE TO ENGAGE IN OR MANAGE THE OPERATION OF: ADMINISTRATIVE OFFICE DIANA M. GOMEZ Finance Director I7f ' Tiami CERTIFICATE OF USE FIRE SAFETY PERMIT BUSINESS NAME : CONVVAY TOURS INC DBA GRAY DATE ISSUED: 06/17/10 VALID FROM: 01/01/10 TO 12/31/10 ACCOUNT NUMBER: 453931- 720104 SERVICE ADDRESS: 301 BISCAYNE BLVD APPROVED USE: CU06-OFFICE BUILDINGS - C.U- RESTRICTIONS: THIS IS NOT A BILL • PLEASE DISPLAY THIS CERTIFICATE IN A CONSPICUOUS LOCATION AT OCCUPANCY ADDRESS. • FAVOR DE MOSTRAR ES T E CERTIFICADD EN LIN.SITIO VISIBLE EN LA DIRECCION DEL COMERCIO . THIS IS NOT A BILL DO NOT PAY This issuance of a business lax receipr floes not permit the holder t0 violate any Zoning laws of the City nor does it exempt the holder from any ficense or permits that may be required by law. This document does not constitute a cedifcation that the holder is qualified to engage in the business, profession or occupation specifies herein. The document indicates payment or the business tax receipt only. NOTICE: This certificate is Non - Transferable. If you relocate, sell the business, or change the type of business a new certificate must be obtained from Building and Zoning al 444 S.W. 2i6 Avenue. 4"' Floor, Phone: (305)416-1199. RTTACN�4'BNT Attachment B Diagram(s) of the Park and the Concession Area 32 TOURS 3AYFRONT PARK 0 301N. 3ISCAYlE 3RVU. 0 MIAMI, FL. 33132 305,35E .7550 s • • — • 1.1 i;;43q 1.11 4-41 • ;911- p.:kon:,jiq,* •!,1§.0, C014 Gt Ssl a nl fis(O 64s 6/4 110l 0 4bi4-ain1a si aE £ F aigasaid $o,v fEli 41� Attachment C Management and Operations Plan Overall Plan for Big Bus Tours / Gray Line Miami's Central Station at Bayfront Park • We would like to maintain our established sales kiosk and podium location at the eastern end of the service road between Bayfront Park and Bayside Marketplace, referred to as the bus turnaround area. At the moment, this is the intersection and main drop off / pick up location for our two -loop system. There are currently Big Bus / Gray Line Miami signs marking the spot. We shade this area will umbrellas, which that are removed during non- operational hours. We have positioned there a movable, branded Kiosk and a rollaway reservations podium. Both the kiosk and the podium are of considerable construction and are left in the area regularly, but can be moved easily for a special event or weather issue. At a point in the future, we would like the flexibility to also set up a reasonably -sized shade shelter with commercial umbrellas and with misters for employee and passenger comfort. We have seating in this area as well. We would like to establish a second point of redemption and purchase at the corner of Biscayne Blvd. and NE 3`d Street on the north end of the park as it fronts Bayside Marketplace. We propose creating a spot for an Open Top Double Decker Visitors Center and Ticket Bus in this area. The unit will be in position during operational hours and return to our depot daily for servicing and cleaning. We will recondition the unit to have a visitor's center and ticket sales counter on the lower deck and observation and resting/waiting area on the top. deck. The unit will also have a self-contained awning, similar to an RV, which we will utilize, when necessary, for shade and rain. We propose to have a concrete or paver area installed for the parking location and a berm built into the Park's existing sidewalk area at the entrance from NE 3`d Street. We would additionally like to explore a curb -cutaway in this location as well to create a bus -loading zone. During refurbishment of this vehicle, we will install a self-contained power supply set up in addition to a "shore -power" option and we will run power to the site location. • Both locations as listed above will be manned during our hours of operation. At the moment, 8:30am to 6:OOpm,.are the times that we staff the Park. This will increase as we implement our Night Tour. At all times, we staff the Park with a supervisory level employee. For visibility and to identify by signage our presence in the Park, we propose to place non- permanent banners, flags, signs and similar branded items in locations proposed by us and approved by the Park management. • Our overall presence in the Park serves as main welcome center for passengers to redeem vouchers for purchases made online, meeting area for phone reservations, and point of purchase tickets. • - We will partner with the. GMCVB to provision the lower -deck Visitors Center with brochure and collateral -material for, reputable partners. We intend to use this location as an area ;where -visitors and residents can learn about events happening in our City, reputable . .attractions»museums, shopping and dining opportunities around our routes. We will also have for sale sundries and items relevant to our passengers' enjoyment of our tour. Bus Oils Elo Luciano Antonio Lebron Tour Guides Head Tour Guide: Joel Lefkowitz Drivers Head driver: Alan Waite Office Ops Claudia Soto Linda McKenna Jesse Younker Sales & Marketing Manager Sales Executive Patricia Santos Attachment D Modifications 34 47-Zit 7.,,c2 Attachment E Required insurance Coverage 35 OPETO-1 OP ID: CW '��.-- CERTIFICATE OF LIABILITY INSURANCE DAT06/2211'Yl1) 06/22111 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER - IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER 314-746-4700 HuntieighMcGehee 8235 Forsyth Boulevard, #1200 314-889-3700 Clayton, MO 63105 Daniel L. Stevens CONTACT ..__..._...____.-....___-__.._-...-_ PHONE_—____—.___.____._____._._____.._._._i..FAX (AvC NyEx�: 1SA/c, No): E-MAIL ADDRESS: INSURER(S) AFFORDING COVERAGE 1 NAIC # -_ INSURER A: James River Ins. Company INSURED Open Top Sightseeing USA Conway Tours Inc., dba Open Top Sightseeing Miami dba Big Bus Tours Miami dba Gray Line Miami 301 N. Biscayne Blvd. Miami, FL 33132 INSURER B : Hartford. Underwriters Ins. Co. t30104 INSURERC : Comhusker Cas. Company i INSURERD: American Safety Indemnity Co. j25433._ INSURERE: INSURER F : . CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. _ INSR. ryPE OF INSURANCE IADDL LTR : INSR SUER WVD POLICY NUMBER (MM/DDY/YYYY) ! (PdMID°PIYYY) LIMITS A I GENERAL LIABILITY X ,COMMERCIAL GENERAL LIABILITY TX 1 OCCUR 100047620-0 04/04/11 04/01/12 I 1 EACH OCCURRENCE I S 1,000,000 E TO RENTED 50,000 PREI.AISES ( (Ea occurrence) 1 $ PREMISES l i ! CLAIMS -MADE ' MED EXP (Any one person) j 5 Excluded PERSONAL 8. ADV INJURY 15 1,000,000 f- GENERAL AGGREGATE is 2,000,000 1 GEN'L AGGREGATE LIMIT APPLIES PER: i . POLICY i; J Co- LOC PRODUCTS - COMP/OP AGG I S 2,000,000 I AUTOMOBILE LIABILITY 1 ANY AUTO I ALL OWNED AUTOS X ;HIRED AUTOS SCHEDULED X 1 AUTOS NON -OWNED L X AUTOS 84UECIU3356 07/27/10 1 07/27/11 COa aBIid D`SINGLE LIMIT I s 1,000,000 (EB BODILY INJURY (Per person) 15 BODILY INJURY (Per accident)! 5 PROPERTY DAMAGE Ts (Per accident) • S D i ��i UMBRELLA I Ian i X X EXCESS LIAB OCCUR CLAIMS -MADE ESU028595-11-01 04/04/11 04/01/12 EACH OCCURRENCE L 5 5,000,000� AGGREGATE j S. _ _S,DOD,000 I DED 1 X i RETENTIONS � 0 5 WORKERS COMPENSATION 1 AND EMPLOYERS' LIABILITY C i ANY PROPRIETOPJPARTNER/ ECUTIVE Y / N 1 OFFICER/MEMBER EXCLUDED? (Mandatory in NH) If yes, describe under DESCRIPTION OF OPERATIONS below N I A MDW001200 04/01/11 04/01/12 WC STATU- OTH-1 X I TORY LIMITS ER LE.L. EACH ACcaDEnT 1,000,000 ___Ls E.L DISEASE - EA EMPLOYEE 5 1,000,000 E.L. DISEASE - POLICY LIMIT 1 5 1,000,000 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space is required) Bayfront Park Management Trust and Army Corps of Engineers are included as Additional Insured with respect to the General Liability coverage where required by written contract. CERTIFICATE HOLDER CANCELLATION BAYFL-2 ;. f:: ;,:;;,,r.,; Bayfront Park Management Trust 301 N. Biscayne Blvd. Miami, FL 33132 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORED REPRESENTATIVE -ACORD-25 (2010/05) ©1988-2010ACORD CORPORATION All rights reserved. The ACORD name and logo are registered marks of ACORD Attachment F Restoration of the Park Current Photos of Concession Area: 36